Leahy Floor Statement On The Judiciary Committee Poised To Advance Ryan Bounds Without Blue Slips

Today marks yet another degradation of the “blue slip” in the judicial confirmation process.  It also marks the further erosion of fairness and comity in the Judiciary Committee.  For much of this body’s history, blue slips have given meaning to the constitutional requirement of “advice and consent.”  They have protected the prerogatives of home-state senators.  And they have ensured fairness in the Senate.  In many ways, traditions like the blue slip have been central to what makes the Senate the Senate.

All of us, whether Democrat or Republican, should care about good faith consultation when it comes to nominees from our own states.  The reasons for this are both principled and pragmatic.  We know our states.  We know who is qualified to fill lifetime appointments to the bench.  That is precisely why traditions matter.  And that is precisely why the nomination of Ryan Bounds to an Oregon seat on the Court of Appeals for the Ninth Circuit is so concerning.

When I was chairman of the Judiciary Committee at the start of the Obama administration, every single Senate Republican signed a letter making the case for the importance of this tradition, and requesting that it be respected during the new administration.  But I did not need that reminder.  Under my chairmanship, during both the Bush and Obama administrations, I respected the blue slip tradition without exception, even when it was not politically expedient. 

My decision was not without controversy.  I faced pressure from my own party’s leadership to hold hearings for President Obama’s nominees who had not received blue slips from Republican senators.  I was criticized by advocacy groups and even the editorial page of The New York Times.  But I resisted such pressure.  I did so because I believed then — and I still believe now — that certain principles matter more than party.

Now, not all Judiciary chairmen followed the same blue slip policy as I did.  And that is their right.  But Chairman Grassley did follow the same policy, at least when a Democrat was in the White House.  Last Congress, no judicial nominee received a hearing without both home-state senators returning positive blue slips.  This Congress, coinciding with a change in the White House, there has been a change in blue slip policy. 

Today, the Judiciary Committee will vote to advance a nominee to a court one step below the Supreme Court who is opposed by not one but by both of his home-state senators, Senators Wyden and Merkley.  If Mr. Bounds is ultimately confirmed, it will mark the first time in the history of the Senate that a judicial nominee is confirmed with opposition from both home-state senators. 

Earlier this week, the Judiciary Committee also held hearing for the nomination of David Porter to the Third Circuit, over the objection of home-state Senator Casey.  Mr. Porter’s nomination was fast-tracked from the start without consultation with Senator Casey.  In fact, Senator Casey made it clear prior to Mr. Porter’s nomination that he would be willing to work with the White House to find consensus on nominees other than Mr. Porter, as he had done with President Trump’s other nominees to the district courts in Pennsylvania.  To no avail.  Chairman Grassley’s treatment of Senator Casey with respect to Mr. Porter’s nomination stands in stark contrast to his treatment of Senator Toomey last Congress when Senator Toomey chose to withhold his blue slip on President Obama’s nomination of Rebecca Haywood.  Ms. Haywood never received a hearing and her nomination eventually expired with no action.

Make no mistake: This Committee’s treatment of Senator Casey, Senator Wyden and Senator Merkley, as well as Senator Baldwin last month, will do lasting damage to our Committee’s traditions.  My concern is not about a mere piece of paper.  My concern is that we are failing to protect the fundamental rights of home-state senators — and we are failing in our constitutional duty to provide our advice and consent.  The nominations of Mr. Porter and Mr. Bounds make a mockery of the blue slip process.  That should concern all of us.

I understand the pressure on my Republican colleagues to help a president from their own party to fill judicial vacancies; even a president who attacks the very legitimacy of our judiciary.  The dilemma is that yielding to such pressure — undermining a Senate tradition simply due to a change in the White House — will do lasting damage to the integrity of this body.  The Senate should never function as a mere rubberstamp for nominees seeking lifetime appointments to our federal judiciary.

Perhaps some may dismiss these warnings, but I have served in the Senate long enough to know that partisan winds tend to change direction.  The one constant in life is impermanence. Inevitably, the majority becomes the minority.  The White House changes hands.  And the shoe is on the other foot.  That is precisely why maintaining a single, consistent policy is so critical. That is why I refused to bend as Chairman of this Committee and that is why I urge Chairman Grassley to reverse course.

My fellow Senators must consider the damage we are doing to this body by abandoning one of the few remaining sources of bipartisan goodwill in our judicial confirmation process.  A vote for Mr. Bounds today is a vote to abandon our ability to serve as a check on not just this president, but any future president. 

Chasing partisan expediency provides only fleeting advantage.  It inflicts lasting harm on this body, and it is within our power to put a stop to it.  I would urge all senators to ensure that, going forward, home-state senators are provided the same courtesies during the Trump administration as they were during the Obama administration.  And for this reason I ask my fellow senators to oppose Mr. Bound’s nomination. 

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