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A system under strain: GOP's treatment of Garland and Dems' blue slips underscore hyperpartisan times

Judge Merrick Garland being nominated to the U.S. Supreme Court
REUTERS/Kevin Lamarque
Judge Merrick Garland being nominated to the U.S. Supreme Court, in the White House Rose Garden on Wednesday, March 16, 2016.

On Friday, the day after I expressed some views about Sen. Al Franken’s decision to block the confirmation of Justice David Stras to a federal appellate court appointment, the Strib weighed in with an editorial calling Franken’s decision “ignoble.”

Online dictionary: “Ignoble: of low character, aims, etc.; mean; base; of low grade or quality; inferior.”

In my piece, I mainly said that anyone who discusses Franken’s decision to block Stras without considering the context of Senate Republicans’ successful blockage of President Barack Obama’s nomination of Merrick Garland to the Supreme Court, without granting him even a hearing, is not being straight.

To their credit, the Strib editorial did mention Garland. It said that “the sharp-elbows partisanship that drove Republican decisions in the Garland and Gorsuch matters helps explain Franken’s decision. But it doesn’t justify it.”

But the Strib didn’t discuss what it means by “doesn’t justify.” Or, perhaps to be specific, didn’t suggest what an appropriate response by Franken or other Democrats to the Garland matter would be, other than, perhaps, to decry “sharp-elbows partisanship,” but go ahead ignoring partisanship as Republicans continue to pack the court with lifetime appointments to young conservatives.

Franken, I should note, did not mention Garland in explaining his decision to block Stras. I have assumed that this was an important part of the background of his decision, and I still assume it. But I should and will seek his comment on that.

Over the weekend, you may have noticed, the two Democratic senators from Oregon also announced that they would withhold their “blue slips” and block the nomination of Ryan Bounds, another young (age 44) conservative to a vacancy on the federal appellate court.

Sens. Ron Wyden and Jeff Merkley (both D-Oregon) likewise didn’t say they were retaliating for Garland. They cited an Oregon tradition, saying Bounds had not been approved by Oregon’s bipartisan judicial selection committee. That’s apparently true and provides some additional rationale for their move, although I will continue to believe it was at least partially inspired by the Garland matter.

My main point, last week and today, was that this is all part of a breakdown of norms that are changing and will change our system. The Constitution says nothing on this topic except that Congress will decide how many federal courts to have and the president will nominate the judges, for lifetime gigs, subject to congressional confirmation. There are now some federal laws on the subject but they don’t affect the interplay between the president and Congress on these matters.

The “blue slip” business is nothing but a Senate practice, which the Senate controls entirely. It used to be a big deal to change the Senate rules and norms, but that has broken down.

Under that rule, Franken and the Oregonians are within their privileges as senators to block a nominee from their state, but if the Democrats keep doing it, I don’t much doubt that the Republicans will change the rule and, if they do, they will do it on a party-line vote. That is becoming the new normal. Perhaps the blue slip is so valuable to senators that they won’t abolish it, or they will work out a compromise.

For the record, my view is that if what Franken did on Stras was “ignoble” it pales in ignobility compared to what the Republicans did on Garland and must be discussed in that context.

And my larger view is that our constitutional system is leaking fluid. The Framers’ design is not as brilliant as the mythical one we were raised to worship. It was written by men who, through no fault of their own, did not envision national political parties that could behave in the way that our parties are behaving. It doesn’t even specify that the Supreme Court can strike down laws of Congress. Many of its features (the Electoral College would be a good example) function in ways they never intended and couldn’t have envisioned. It is held together nowadays by laws and rules and norms that came after, but those are breaking down.

I’m not predicting the apocalypse. The whole system is under tremendous strain and the hyperpartisanship of the moment is one the biggest sources of that strain.

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Comments (28)

Some tradition?

It seem that this custom/tradition/courtesy is adhered to only when it is convenient for those in power. It's been ignored before. Often.

https://www.newyorker.com/news/daily-comment/blue-slip-battle-the-senate...

Hi Mike,It's no surprise

Hi Mike,

It's no surprise this tactic has a history and I, for one, don't see an end to this or any other partisan tactic. We may eventually get to a point where these little slights will be remembered as quaint. Given the bitter divide I see 3 options.

1. Just ignore the blue slips, as Orrin Hatch did.
2. Nominate jurists only from states with friendly Senators.
3. Agreeing to nominate like minded jurists to district and appellate courts ie: Conservatives in conservative districts, leftists in liberal districts. Although this is just another gentleman's agreement that is doomed to failure, I suppose...scratch that, 2 options.

It's silly to keep playing these games. We live in a winner-takes-all country now; it's time to acknowledge that truth, I think. As Obama reminded the GOP in 2009, elections have consequences.

Unfortunately for us

the consequence of his election was Obama trying to work with a party whose leaders had no interest in working with him, in fact they vowed to oppose him on everything, and they did. Now they are working to dismantle everything they couldn't obstruct.

both sides do it - maybe

Garland was a perfect nominee and a reflection of Obama's attitude. He tried to get a respected jurist on the Supreme court. Moderation is just not in style these days. We will all live with the consequences of this stylistic lurch for better or for worse.

The difference

Garland was a moderate -- about as near to the center as a Democratic nominee could be. He would have been to the right of most of the Democratic court nominees.
Gorsuch, on the other hand, is clearly a conservative in the mold of Scalia.

Garland was a moderate, but

Garland was a moderate, but he was nominated to replace a conservative. Sotomayor, a far leftist, replaced Souter, a moderate. And Kagan, a leftist not quite as far out there as Sotimayor, but definately a leftist replaced Stevens who was moderately conservative.

I don't blame Obama for trying to tilt the deck; he's a lefty, and wanted a continuation of lefty judicial activism. I prefer a *slight* tilt to the right, not a lurch in either direction. I think Gorsuch provides that balance, and I hope that Trump picks a swing vote to replace Ginsberg and a Constitutional conservative to replace Kennedy.

Pick a Judge, Any Judge

I can imagine the hearing now: "So nominee, do you promise to be the swing vote on the Supreme Court?"

"Of course, Senator. There will be no way you can predict how I will vote on a particular question."

"Works for me!"

Sure, that's going to happen. I can't wait.

As one noted constitutional scholar noted way back in 1970, “[t]he Senate should discount the philosophy of the nominee. […] The president is presumably elected by the people to carry out a program and altering the ideological directions of the Supreme Court would seem to be a perfectly legitimate part of a Presidential platform.” I believe the scholar in question gave short shrift to those views after 2009, but he may have picked them back up again.

The Roberts court

has done far more 'legislating from the bench' (most notoriously Citizens United) than its predecessors.

For Some Reason

This may well not apply to Mr. Senker, but conservatives liked to mention that the opening was the old Scalia seat, as if the Constitution declared it must always be filled by a conservative.

Should Earl Warren's seat always be filled by a liberal? Funny, I didn't hear anything like that when Thomas filled Thurgood Marshall's seat.

Marshall to Thoimas

Interesting thing about that--Thomas was kept in the wings waiting for Marshall's seat to open up. Senator Hatch noted as much during his confirmation hearings.

Yes, he was very well qualified and well known in conservative legal circles. His elevation to SCOTUS had to wait, however, until the "black" seat opened up.

C

Actually, I believe that the ABA gave Thomas a rating of 'C', compared with the 'A's usually given to SC nominees.
Better make that 'qualified'. Typical affirmative action; he met the minimum qualifications for the position rather than being the best qualified for it.

Which still boils down to

Obama moved the Court towards the center; Trump moved it towards the Right.

Anyone that can look at

Anyone that can look at Obama's picks and claim he "moved to the center" is not looking for a serious debate.

The best that can be said of him is that he realized that after Sotomayor, putting another fringe leftist on the court could trigger the second civil war, and opted for a better decision.

Facts

Sotomayor agreed with Roberts on 75% of their votes. Does that put HIM on the fringe?
Or does 'fringe' simply mean 'Latina'?

Hi Paul, Ive been unable to

Hi Paul,

Ive been unable to corroborate that figure. In fact, all I can find are stories recounting acrimony between Roberts and Sotomayor; can you direct me to the source of your statement?

In this case, fringe means far left. You can add race if it makes you more comfortable (it does seem to be a requisite to leftists), but it's irrelevent to the discussion.

Slipping Away

The rationale for the blue slip is a good one. Encourage the White House to consult with the Senate, especially on District Court nominations where the candidates for the bench may not be as well known as candidates for, say, the Supreme Court (there are 663 District Court judgeships authorized by Congress).

On the other hand, it is too easy for an individual Senator to abuse the procedure. Hyperpartisanship can leave judicial offices unfilled for too long (this happened in the Obama administration, when Red State Senators would refuse to accept any Obama nomination). Senators have also been known to go back on their word to support a nominee (see Jennifer May-Parker's nomination), or have blocked nominations for reasons unrelated to the judicial nominee.

Republicans were enthusiastic blue slippers when the nominees came from President Obama. Now, in yet another example of "whose ox is being gored?<" they are thoroughly disgusted with it. Color me surprised.

Maybe...

Could be some payback for Garland, but I hope Democrats have also finally realized that Originalist Judges like Scalia are intellectual frauds that need to be kept off the benches. That could be the another reason these Democrats aren't talking about Garland, maybe he's NOT the primary reason they're blocking Scalia clones.

"Judicial activism"

Isn't it interesting that we no longer hear of "activist judges" ? "Activist judiciary" used to be the primary grievance of the about judicial decisions they disagreed with, usually on moral or religious, (as opposed to legal) grounds? We are now in the age of judicial partisanship with "lefty judicial activism" or "conservative judicial activism". Evidently, all pretense to conservative judges never engaging in their own activism like expanding the First Amendment to include money as speech and giving legal fictions like corporations greater rights than, like, actual human beings.

So what exactly is so partisan or even "ignoble" about blue-slipping a self-proclaimed "conservative judge" who wants to be appointed to a strategically important bench, like the District of Columbia Court of Appeals? I'd argue that a judge who's indicated a bias is in favor of the wealthy and corporations automatically places him opposed to the public interest. Blocking his appointment to that important position is a highly non-partisan and statesmanlike act. Too bad there aren't more statesmen like Al Franken in the Senate.

Who is to blame?

I don’t know why people don’t understand that this boils down to how we treat each other on a daily basis. We elect extreme people and justify it because ‘they’ elect more extreme people… from our viewpoint.

Franken is a rude person. I would never want my kids to grow up like him. He is mean and uses vulgar language to describe those he does not agree with then seeks out the worst personalities only to claim that he is not like them. And he gets a lot of ‘positive’ attention for doing these things.

It is not the ‘system’ that is broken. It filters from the bottom up. At present, we cannot have an honest conversation about things like immigration, judges, and health care without treating the other person like they are the scum of the earth. We are the ones that elected these people. And we are to blame.

Franken's other reasons

Franken called out other reasons for withholding the blue slip: vetting by the ABA, and no collaboration with the MN Senators on the potential candidates. These aren't *required*, but have been part of the grease of good governance for a long while.

Over the past couple of decades, it has been the GOP that is ignoring and trashing these norms, and Eric should call that out. During the Obama administration, e.g., Rubio withheld his blue slip for for judge he recommended (Mary Flores), and McConnell slow-walked nominees already approved by bi-partisan votes in the Judiciary Committee.

Eric, stop with the two-siderism. It ain't so.

There are lots of signs ...

that there has been a soft take over at the Strib. The editorial referred to is another. But maybe that is a subject too sacred to touch. I would agree Originalsim is hokum. Particularly since by an large the always referred to founders saw their conceptions evolving, Originalism prevents a forward more inclusive growth.

The Garland fiasco

Simply shortened the inevitable result. Judge Garland could have gone through a whole lot of hearings, testimony, etc., and then would not have received enough votes to be placed on the Supreme Court. The majority leader did make a horrible mistake by stating the result right from the start, but his decision did save a lot of time and effort.

Judge Stras would probably be confirmed if allowed a hearing, which would be a different result from the Garland fiasco. And this is for a lower court position.

Sounds Like

A distinction without a difference.

The difference is

That Garland would not have been confirmed and that Stras would have been confirmed if both had been voted on.

So you're saying that

judges should simply be appointed by the ruling party.
One does not KNOW what a vote will be until it actually happens.

Actually

What I said is in print in the post.
It is true that we are never absolutely positive of an outcome until a vote (see 2016 Presidential election), but our Senators and Representatives prefer not to vote if at all possible.
Feel free to doubt my predicted outcomes for both Garland and Stras but also feel free to encourage Senator Franken to allow a vote so that we can all see if I'm right. He can vote no, but maybe the other 99 senators would like a chance to express their opinion by voting.

Fiasco, Indeed

Senators would have had to explain their votes against a well-qualified centrist appointee.. In particular, they might have to explain why the appointee's ideology was suddenly more important than his qualifications, and whether that rule would apply under a Republican President as well.

Much easier to hide under their desks and avoid the issue.

Al Franken is not rude; he is

Al Franken is not rude; he is a well-spoken U.S. Senator who does his homework, becomes knowledgeable on this or that issue or cluster of issues (telecommunications law and regulation, for example), then asks tough questions (see how he tripped up Jeff Sessions in a confirmation hearing) votes from a coherent Democratic perspective.

Here, he studied who Stras is, in terms of judicial philosophy and background, and determined that he doesn't meet the standards Franken believes relevant for life-time appointment to an important federal bench. So he "blue-slipped" him, not breaking with any Senate norm at all. Rather, Franken knows the Senate's traditions and sometimes arcane norms, and used one.

Franken, in case anyone hasn't noticed, is Minnesota's solid-blue Democratic Senator. He boldly goes where our Good Girl senator will not, and I'm glad he's holding up the DFL standard for us.