Judicial Nominations

Floor Speech

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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 nomination.

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 tradition.

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.

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