07.18.18

Leahy Floor Statement On The Nomination Of Ryan W. Bounds And The Abandonment Of The Senate's Blue Slip Tradition In Judicial Confirmations

As the longest-serving member of the Senate — and a former Chairman of the Judiciary Committee — I again feel obligated to speak up about the steady erosion of the norms and traditions that protect the Senate’s unique constitutional role with respect to lifetime appointments to our federal courts.  We should all be alarmed by the Judiciary Committee’s abrupt change in course when it comes to its respect for blue slips — a change that coincides with a change in the White House.  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 and comity in the Senate. 

When I was Chairman of the Judiciary Committee, under both the Bush and Obama administrations, not a single judicial nominee received a hearing without first receiving both home state senators’ positive blue slips.  Regardless of who was in the Oval Office, I steadfastly defended blue slips because I firmly believed in both their constitutional and institutional importance.  I also firmly believed in the prerogatives of home-state senators and the need to ensure that the White House works in good faith with those senators.

My decision to defend blue slips was not without some controversy.  I faced significant pressure from my own party’s leadership to hold hearings for President Obama’s nominees who had not received positive blue slips from Republican senators.  And I was criticized by liberal advocacy groups and major news outlets like the New York Times.  But I resisted such pressure, because I believed then—and I still believe now—that certain principles matter more than party.

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 judicial seats that will have a tremendous impact on our neighbors and communities. 

This week, the Senate will vote whether to confirm a nominee to the Ninth Circuit, Ryan Bounds, opposed by not one but both of his home-state senators. Senators Wyden and Merkley were cut out of the nomination process entirely.  The White House interviewed Bounds and fast-tracked his nomination without consulting either senator. If Mr. Bounds is confirmed, it will mark the first time in the history of the Senate that a judicial nominee is confirmed despite opposition from both home-state senators.                                     

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 on a president’s nominees.  That should concern all of us.  The Senate should never function as a mere rubberstamp for nominees seeking lifetime appointments to our federal judiciary. 

Without blue slips, nothing prevents a California nominee from being appointed to a Texas court.  Nothing prevents our state selection committees from being completely ignored by the White House.  And that is what we are seeing today.  The Oregon bipartisan judicial selection commission overwhelmingly voted that Mr. Bounds — who misled the commission about his controversial writings — did not deserve its recommendation.

Some may dismiss these warnings, but I have served in the Senate long enough to know that winds tend to change direction. Inevitably, the majority becomes the minority.  The White House changes hands. I suspect Republicans will rekindle their love of blue slips if they find themselves in the minority under a Democratic President — as they did under President Obama and during my Chairmanship. That is precisely why maintaining a single, consistent policy with respect to blue slips is so critical.

A vote for Mr. Bounds is a vote to abandon our ability to serve as a check on not just this president, but any president.  Abandoning long-standing traditions to chase 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.  Right here and right now.  I would urge all senators to ensure that home-state senators are provided the same courtesies during the Trump administration that they received from both Republican and Democratic Judiciary Chairmen during the Obama administration.  I ask my fellow senators to oppose Mr. Bound’s nomination.

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