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Senate Majority Leader Mitch McConnell on Wednesday told The New York Times that he thought the “blue slip” practice should be scrapped for circuit court nominations, a move that would eliminate Democrats’ only leverage against President Donald Trump’s picks to the nation’s second-highest courts.
“My personal view is that the blue slip, with regard to circuit court appointments, ought to simply be a notification of how you’re going to vote, not the opportunity to blackball,” McConnell told The Times, adding that he still favored keeping the practice in place in its current form for district court judges.
Responding to McConnell, Senate Minority Leader Chuck Schumer told The Times that “getting rid of the blue slip would be a mistake.”
“Preserving some of the minority’s power in the Senate has broad support because every one of us knows we’re probably going to be in some of each,” he said.
The blue slip is a Senate tradition in which senators can give or withhold their blessing for a judicial nominee from their state. The process is intended to provide a more bipartisan consensus on judges who will serve in or represent a senator’s home state when the president is of the opposition party, encouraging communication between the White House and home-state senators before a nomination.
It’s not an uncommon practice to block the nominees, as several of President Barack Obama’s met the same fate. McConnell’s comments came after Democrats this month used the blue slip to block two of Trump’s nominees to circuit courts.
On September 5, Democratic Sen. Al Franken of Minnesota refused to sign off on Trump’s nomination of Minnesota Supreme Court Judge David Stras for a vacancy on the 8th US Circuit Court of Appeals. Franken said he could not support Stras, nominated by Trump in March, and would not return a blue slip to the Senate Judiciary Committee.
On Thursday, Sens. Jeff Merkley and Ron Wyden of Oregon announced they would block Ryan Bounds, an assistant US attorney in Oregon, from a seat on the 9th US Circuit Court of Appeals. The duo said in a letter to the White House that they would not provide blue slips for Bounds because he had not been approved by a bipartisan judicial selection committee in their state.
The blue-slip denials represent the biggest roadblock for Trump as he tries to remake the courts: landing Democratic support for judicial nominees in the 30 states with at least one senator who caucuses with Democrats. Though his nominees have received blue slips from Democratic senators in Colorado, Michigan, and Indiana, Trump has mostly avoided naming judicial nominees for district and circuit courts from states represented by at least one Democrat.
While the denial of a blue slip does not prevent a judge from being approved, Glenn Sugameli, an attorney who is an expert on judicial nominations, told Business Insider in an email last week that “no circuit court nominees have been confirmed over objection of one (or two) home-state senators – including under Obama.”
Roughly 80% of Trump’s nearly 50 nominees to these courts have come from states represented by two senators from his party – a much higher percentage than that of Obama’s nominees from such states at the same point in his presidency. Just five of Trump’s nominees hail from states with two Democratic senators.