| Thu Feb. 6, 2014 10:25 AM GMT
Of Obama's judicial nominations so far, just ten—fewer than four percent—have worked as lawyers at public interest organizations, according to a report released Thursday by the Alliance for Justice, a network of civil rights organizations. Only 10 nominees have had experience representing workers in labor disputes. Eighty-five percent have been either corporate attorneys or prosecutors. At an event Thursday sponsored by several civil rights organizations, including the Brennan Center for Justice and the Alliance for Justice, Warren called for more balance in the system.
"Power is becoming more and more concentrated on one side," she said. "Well-financed corporate interests line up to fight for their own privileges and resist any change that would limit corporate excess… We have an opportunity to…fight for something that balances the playing field in the other direction."
Warren noted that now is the perfect time to take up that fight. Obstruction by Senate Republicans has stalled the confirmation of many of the president's judicial nominees over the years. More federal judgeships remained vacant during Obama's first term than during President George W. Bush's, and there are still more than 50 vacancies on the federal bench that need to be filled. "So it's unsurprising that the president and a majority of the Senate gravitated to nominating corporate lawyers…that most conservative senators could not object to," Warren said. In November, however, the Senate voted to put an end to GOP obstruction by ending the filibuster for judicial nominations. Now it only takes a simple majority of the Senate to confirm nominees to the federal bench. Theoretically, that means that Obama can nominate progressive candidates with experience representing the average American, and Democrats will be able to confirm those nominees without any Republican votes.
On Jan 16, the president nominated four lawyers with public interest backgrounds to fill district court vacancies in Illinois, Washington, Nevada, and Missouri. Two of those nominees have significant trial experience representing plaintiffs in corporate wrongdoing cases, one is a former public defender, and one comes from criminal defense.
But there are still roadblocks that may prevent the president from nominating progressive candidates. The GOP can still use something called the "blue-slip process" as a de facto filibuster on nominations. Here's how: When the president is considering a potential judicial nomination, the senators from the state where the judge would serve are given a blue slip of paper. If both senators do not return their blue slips, the nominee is not allowed to move on to a vote in the Senate judiciary committee.
It is because of the blue-slip process, for example, that Obama recently nominated two candidates to serve on the federal bench in Georgia who raised the hackles of liberals: Georgia Court of Appeals Judge Michael Boggs and Atlanta attorney Mark Howard Cohen. Boggs voted to keep the Confederate battle emblem as a prominent part of Georgia's state flag when he was a Georgia legislator in the early 2000s. Cohen helped defend Georgia's voter ID law, which voting rights advocates say makes it harder for poor people and minorities to vote.
On Senate Blue Slips, A Modest Proposal
January 8, 2014
When the White House published its new list of judicial re-nominations earlier this week one name was notably absent from the previous list: William Thomas, of Florida, an openly gay, black man whose candidacy for a federal trial seat was “blue-slipped” by Sen. Marco Rubio, the state’s Republican senator. The Administration gave up on Thomas’ nomination even though he was well qualified for the position and even after Rubio’s stated reasons for blocking the nomination were undermined by, well, by the facts. You could say that Rubio was for Thomas before he was against him.
At least Rubio gave a reason for his flip-flop — at least he put himself on the record explaining why he was seeking to block the nomination after he had initially endorsed it. That is more than most senators do when they invoke the hoary blue-slip procedure to knock judicial nominees out of the box without a hearing or a vote. When Oklahoma’s two Republican senators blocked the nomination of Arvo Mikkanen for a trial seat in 2011, for example, they never publicly explained why. Nor did Sen. Richard Burr, the Republican from North Carolina, who blue-slipped Jennifer May-Parker’s nomination there after first endorsing her candidacy.
The blue slip may have a long history in the Senate — the tradition dates back at least to 1917 (my Brennan Center colleague Victoria Bassetti last month posted a very good piece on our site focusing upon that history). But Congressional tradition or no, there is something decidedly un-American about an evaluative process that does not permit the person judged, in this case the judicial nominee, to be made aware of the reasons for the judgment. That’s the basis of the Fifth Amendment’s confrontation clause — you have a right to face your accuser — and there is no good reason why it shouldn’t apply, in some sense, to the continuing use of these blue slips.
The blue-slip prerogative rests always with the chairman of the Senate Judiciary Committee, who today is Sen. Patrick Leahy, the Democrat from Vermont. Leahy remains adamant that he will continue to honor the tradition even as senators (of both parties) abuse it to prevent decent public servants from filling the nation’s empty benches. Fair enough. I haven’t been able to convince him otherwise — no one has — so I’m going to take a different approach. If Leahy won’t end the blue-slip tradition, as he should, at least he should immediately alter it to require senators to explicitly and in detail describe their reasons for blocking a judicial nominee.
Right now, as you can see, the blue slip itself is a simple, antiquated form. It has two small lines (I approve/I oppose) and four lines for “Comments.” That part of the slip should be revised. An approval, of course, needs no additional explanation — the senator completing the form will presumably be able to express her or his views of the nominee either at the confirmation hearing or before the Senate floor vote that may follow. But if a senator checks off “I oppose” to a nominee that senator ought to be required to explain in detail why. Here are the additional questions I would suggest for the new blue slip:
If you oppose the nomination of this
judicial candidate, please state the reasons for your opposition. Please
list any decided court cases or news reports upon which your opposition
is based. Please list any published comments, written material or
television or radio broadcasts made by the candidate to which you
object.
If you oppose the nomination of this
judicial candidate, please state whether you have discussed your
opposition with the candidate and whether you have given the candidate
an opportunity to respond to your objections. Please produce any letters
or other written documents memorializing any such communications.
The blue-slip process has been altered and revised before. There is
nothing in the Constitution that precludes adding a substantive
component to the process. Nor are there any rules of the Senate that
block Leahy from requiring his colleagues to justify the use of their
“senatorial courtesies” with facts. The candidates deserve to know why
these politicians have rejected their nominations. And the American
people deserve to be able to evaluate the bases for those rejections. I
know. I know. It won’t be a “senatorial courtesy” any longer if the
senators who want to blue slip a judicial nominee have to pay a
political price to do so. But that wouldn’t be a bad thing, would it?(Photo: Flickr)
About Andrew Cohen
Andrew Cohen is a fellow at the Brennan Center for Justice. He is also a contributing editor at The Atlantic, legal analyst for 60 Minutes, and chief analyst and legal editor for CBS Radio News.Read Andrew's Latest Work
Blues for the Judiciary
December 6, 2013
According to last weekend’s New York Times,“The decision by Senate Democrats to eliminate filibusters for most judicial nominations only marginally enhanced President Obama’s power to reshape the judiciary…because Republican senators can still veto his nominees to most currently vacant appeals court seats” using the blue slip. Kathryn Ruemmler, the White House counsel, added, “The blue slip rule for judges has been more problematic than the filibuster, in part because it is a silent, unaccountable veto.”
If the filibuster is the Senate’s best-known rule, then the blue slip is its third cousin, twice removed, and raised in a foreign country. But according to the current writing on the Obama judicial nominations crisis (here and here and here and here), the blue slip is the new big bad.
It’s not, and judiciary analysts are missing the point.
But first what is this mysterious blue slip?
Think of it as a hall pass that a nominee has to get from his or her home state Senators. No prospective judge can visit the Judiciary Committee for a hearing without the slip. It’s an almost century-old process used by chairmen of the Senate Judiciary Committee to solicit the advice of the two Senators from a judicial nominee’s state. It applies to district and circuit court judges, since circuit court seats are allocated among the states in a circuit. (It is also used for U.S. Attorneys and U.S. Marshalls).
The blue slip’s impact has varied. It owes its very unwritten essence to the practices, inclinations and prerogatives of the Judiciary Committee’s Chairman. He (and it has always been a he) says what the blue slip says, and he says how he will honor the blue slip. Before today’s chairman, Sen. Patrick Leahy (D-Vt.), will schedule a judicial nomination hearing, both blue slips must be returned in the affirmative.
The potential for abuse is clear. It essentially grants every Senator a filibuster of one over nominees from his or her own state. Recent studies and press reports indicate that the blue slip is and has been used to scuttle nominees in a partisan manner.
The Senators from Arizona have reportedly used the blue slip to block five pending district court nominees from their state. The two Kansas Senators reportedly blue-slipped a nominee they had previously okayed. (We take no position on whether these nominees should be confirmed. These are examples of the blue slip thwarting transparent examination of the nominees via a hearing and a vote).
The blue slip has also been deployed in internal Democratic party squabbles. Early last year, Sen. Robert Menendez (D-N.J.) used the blue slip to block an Obama nominee to the Third Circuit Court of Appeals.
As with all procedures and practices in a political institution, the blue slip is subject to partisan manipulation. But in contrast to the filibuster where there is (or was) safety in numbers and anonymity, blue slips eventually become public. Moreover, it's difficult for a Senator to resist in-state pressure and bad press to wreck a more-often-than-not well-respected, moderate member of the state bar who often has bi-partisan support.
The current blue slip hand-wringing elides a more basic discussion about how judges are selected and nominated in the first place.
True, the blue slip is a fussy relic of an earlier Senate. True, the President has the right to nominate judges. But the Senate does have a role in offering advice and consent. Neither branch of government should take its prerogatives to extremes, and, in the past, the blue slip has helped insure that Senators are consulted about nominees from their states.
This role is proper. Senators are usually plugged into their state’s legal community and more acutely aware of local sensitivities than any President or White House counsel’s office.
Without the Senate’s meaningful advise and consent role, there would be no checks on a President exercising almost unfettered judicial patronage. We should not lightly hobble Senators’ roles in judicial nominations. No one really knows how any President selects judicial nominees, who, if approved, can serve for life. When there is a judicial vacancy, the process for soliciting and screening potential judges is a word-of-mouth system. Phone calls are made. Bushes are beaten. Lists are drawn up and sent to the White House counsel and the Department of Justice. And then a nominee emerges.
Rather than focusing on the blue slip, there should be a bipartisan, transparent, intellectually honest judicial selection and screening process. Indeed, several Senators have created judicial nominations commissions for their states that work in tandem with the White House that reduces the potential for blue slip problems.
Consider what Florida Sens. Bill Nelson (D) and Marco Rubio (R) did this July when four judgeships and a U.S. Attorney slot opened up: they issued a press release via the state bar association calling for applicants. Applications for the positions were available on websites; a deadline established. Members of the nominating committee were public. Committee rules of procedure were drafted in 2009. And in mid-September, the committee publicly submitted a list of finalists to the two Senators.
Judicial nominating commissions seem to have made their debut in the Carter Administration when the President established a national committee for circuit court nominees and “urged senators to appoint their own committees for district judgeships.” Twenty-nine state committees were created. Now there are only 14. But the good news is that three more of them are bipartisan like the Nelson-Rubio one. (See chart below.)
Given the elevated partisanship over judicial nominations and the current wave of blue slip disparagement, it’s not clear if it will survive. To a certain degree, the blue slip has always functioned as a relative of the filibuster. Judiciary chairmen knew that Senators could always escalate to a filibuster, so the blue slip was a way to front load the question. Now that the judicial filibuster is moribund, the blue slip process owes its existence to the Judiciary Committee chairman’s sense of courtesy.
Leahy has indicated that he would maintain the blue slip. “As long as [it] is not being abused by home-state senators, then I will see no reason to change that tradition.”
But here’s a reform proposal: the Chairman should honor the blue slip for all Senators who have established transparent, bipartisan, and fair judicial nominating commissions. Perhaps in the waning days of old school senatorial courtesy, this vestige of the gentleman’s Senate can be leveraged to inject some greater clarity into the system.
|
States With Judicial Nominating Commissions
|
|
|
Bipartisan |
Fla., Ill., Pa., Wis. |
|
Partisan |
Calif., Colo., Conn., Hawaii, Mich., Ore., Vt.1, Wash. |
1.) Sen. Bernie Sanders is an Independent who caucuses with the Democrats.
Source: American Judicature Society
The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.
http://www.brennancenter.org/blog/blues-judiciary
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