JUDICIAL NOMINATIONS; Congressional Record Vol. 164, No. 73
(Senate - May 07, 2018)

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[Page S2506]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

                          JUDICIAL NOMINATIONS

  Mr. SCHUMER. Mr. President, on another matter, as the Senate returns 
to work after the recess, we are scheduled to process six circuit court 
judges over the next few weeks. Some of these judges are 
noncontroversial and have received support from their home State 
Democratic Senators, and we will work with the majority to confirm 
them. But Michael Brennan, second in line this week, will receive a 
cloture vote on the floor of the Senate even though one of his home 
State Senators, Ms. Baldwin, has not returned a blue slip for his 
  When hearing the facts, they are appalling--not just his ideology, 
although Mr. Brennan is a very conservative nominee who failed to earn 
the recommendation of a functioning bipartisan commission that was set 
up by both Senator Baldwin, a Democrat, and Senator Johnson, a 
Republican, to recommend Federal judicial nominees. That is how people 
want us to do things, in a bipartisan way. I was able to work out judge 
nominations in a bipartisan way in the Senate when we had a Republican 
President, a Republican Governor, but that was overrun. This is now the 
second time that Chairman Grassley has ignored the blue-slip tradition 
in this Congress, but the part that really burns me and I think many 
others who are fair-minded in the Senate and this country is the fact 
that the seat that Mr. Brennan would fill on the Seventh Circuit was 
held open for 6 years--6 years--via blue slips. Senator Johnson did not 
turn in a blue slip, and the seat stayed vacant.
  Now that we have a Republican President, Senator Baldwin's blue slip 
is being ignored. What a double standard; what hypocrisy. When people 
ask whether we are being obstructionist, let the shoe fit as to what 
happened to this seat on the Seventh Circuit. It was historic 
obstruction, yet Senator Leahy faithfully observed the blue-slip 
tradition and kept the circuit seat vacant for 6 years.
  Listen to this. During those 6 years, none other than Mr. Brennan 
himself, the nominee, wrote an op-ed defending Senator Johnson's right 
to refuse to return a blue slip to the Seventh Circuit vacancy. Of 
course, irony of ironies, it is now Mr. Brennan who is up for 
confirmation over the objection of one of his home State Senators. 
Where is the defense of senatorial courtesy today?
  Making matters worse is the fact that the far right is pushing very 
conservative nominees, way out of the mainstream, and the pressure on 
my friend--and he is my friend, the Republican leader--to ignore all of 
the traditions, the blue slip above all, and create this double 
standard is really galling.
  On Wednesday of this week, the Judiciary Committee will hold a 
hearing on Ryan Bounds. He is also a nominee for a circuit court, this 
one the Ninth Circuit in Oregon. He has not received a blue slip from 
either Senator Wyden or Senator Merkley. This will be the first time 
the Judiciary Chairman has allowed a nominee who lacks the support of 
both home State Senators to proceed, and it will be the third time this 
Congress that Chairman Grassley--who showed himself to be a statesman 
when he moved the bipartisan bill on the special counsel last week, but 
in this case, there is no statesmanship showing--has ignored the 
century-old blue-slip tradition.
  When Democrats held the majority, we respected the blue-slip 
tradition, not because it was some esoteric custom but because blue 
slips are a way to force consultation and consensus on judicial 
nominees. You don't get many nominees with a blue slip, far right or 
far left. Those judges tend to want to make the law, not interpret it. 
We want all our nominees, whether they are nominated by a Republican or 
Democratic President, to be qualified and to have demonstrated 
excellence in their careers. Blue slips were a way to encourage the 
Senate to come together around qualified nominees. I assume that is why 
41 Republican Senators a few years back, in 2009, wrote to President 
Obama to say that ``we, as a Conference, expect [senatorial courtesy to 
the blue slip tradition] to be observed, even-handedly and regardless 
of party affiliation.''
  Let me read that again. This is what Senator McConnell and Senator 
Grassley signed: ``[W]e, as a Conference, expect [senatorial courtesy 
to the blue slip tradition] to be observed, even-handedly and 
regardless of party affiliation.''
  Majority Leader McConnell and Chairman Grassley both signed that 
letter. Today they are singing a different tune. So while we want to 
work with our Republican colleagues to confirm nominees expeditiously, 
we are very disappointed in the way they have trampled the blue-slip 
  When my colleagues come to me and say: What about comity and what 
about working together? It goes both ways. It goes both ways. This is 
appalling. It is unfair, it is wrong, and it is another degradation of 
how the Senate has always functioned.