03.06.19

Senate Floor Statement Of Senator Patrick Leahy On Judicial Nominations

Judiciary Committee — I again feel compelled to warn about the destruction of the long held norms and traditions that have protected the Senate’s unique constitutional role with respect to lifetime judicial appointments.  Until recently, members of this body knew well that they would have a say when it comes to who will sit on federal courts in their home states.  Blue slips protected the prerogatives of home-state senators and gave meaning to the constitutional requirement of “advice and consent.”  They ensured fairness and comity in the Senate.  But that now is quickly becoming history, and I fear it will do lasting damage to the Senate.

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 the blue slip 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.  Regardless of who was in the Oval Office, under my chairmanship not a single judicial nominee received a hearing without first receiving both home state senators’ positive blue slips. 

I defended blue slips, even when it was not popular in my party, 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.  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 communities.  Without blue slips, nothing prevents our state selection committees from being completely ignored by the White House.  And nothing would even prevent a New York or California lawyer from being nominated to a Texas court, or vice versa.   

Yet, the Senate today is abandoning this protection.  Last week, for the first time in the history of this body, a nominee was confirmed to a seat on a circuit court over the objections of both home state senators.  The first time in our history that has happened.  

This week, we are voting on two additional nominees, Chad Readler and Eric Murphy, opposed by another home-state senator, Senator Brown.  Senator Brown made extensive efforts to reach a compromise with the White House on these two Sixth Circuit vacancies, but the White House was not interested.  Knowing that blue slips will not be respected, the White House does not even have to try.  Even superficial consultation is an afterthought. 

Senator Brown then attended the confirmation hearings and spoke against these nominations.  He cited, among other things, Mr. Readler’s unprecedented actions attacking healthcare protections while serving in the Trump Justice Department, when Mr. Readler was willing to reverse Justice Department policy and sign a brief undermining protections for preexisting conditions when career Justice Department officials refused.  And Senator Brown cited Mr. Murphy’s longstanding support and advocacy for restrictive voting laws in Ohio.  Even though Senator Brown’s constituents will have to live with the ramifications if these nominees are confirmed, his concerns about their records — and his voice in this process as a United States senator — were ignored.

These votes come on the heels of the Senate confirming a 37 year-old nominee for the Fourth Circuit who has practiced law for a grand total of nine years.  She now holds a lifetime judgeship on an appellate court, just one step below the Supreme Court.  Her confirmation hearing made a mockery of the Senate’s duty of “advice and consent.”  It marked the first time in the Judiciary Committee’s history that a nomination hearing was held during the October recess over the objections of the minority.  Only two Republican senators could attend the hearing, and questioning lasted only 20 minutes.  

The Senate should never function as a mere rubberstamp for nominees seeking lifetime appointments to our federal judiciary.  But that’s exactly what we are seeing today under this Republican majority.

When I chaired the Judiciary Committee, many senators on the other side of the aisle expressed — both publicly and privately — their appreciation for the fact that my respect for blue slips protected their rights, and gave meaning to “advice and consent.”  Their about-face now that they control the Senate is unbecoming, and it further cedes Senate prerogatives to the Executive Branch.  And it is deeply disappointing.

I know the pressure my Republican friends are under to rubberstamp President Trump’s nominees.  And I know my warnings will fall on many deaf ears.  But I have served in the Senate long enough to know that political winds tend to change direction.  Inevitably, the majority becomes the minority.  The White House changes hands.  I suspect that many of my Republicans colleagues, who care about this institution as do I, will live to regret many of these actions.  But the further down this path the Senate goes, the harder it will be to un-ring this bell.

A vote for Mr. Readler or Mr. Murphy is a vote to abandon our ability as home-state senators to serve as a check on not just this president, but any future 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. Readler and Mr. Murphy’s nominations. 

Press Contact

David Carle: 202-224-3693