[Congressional Record Volume 163, Number 185 (Monday, November 13, 2017)]
[Senate]
[Pages S7174-S7175]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                           Blue-Slip Courtesy

  Mr. GRASSLEY. Madam President, in the last several weeks, there has 
been a lot of discussion regarding the blue-slip courtesy that applies 
to judicial nominations. I want to take a moment to clarify a few 
things. My position hasn't changed. Like I said in November of last 
year, I intend to honor the blue-slip courtesy, but there have always 
been exceptions.
  First, the blue slip has always been a Senatorial courtesy. It is 
premised on the idea that home State Senators are in a very good 
position to provide insights into a nominee from their State for the 
Federal judiciary. It is meant to encourage consultation between the 
White House and home State Senators about judicial nominations. That is 
why I value the blue-slip tradition and ask for the views of Senators 
on all nominees to courts from their respective States.
  Throughout its history, the many chairmen of the Senate Judiciary 
Committee have applied this blue-slip courtesy differently. That is a 
chairman's prerogative. The chairman has the authority to decide how to 
apply the courtesy. Over the past 100 years, there have been 18 
chairmen of the Senate Judiciary Committee who recognized the value of 
the blue-slip courtesy, but only 2 out of these 18 chairmen required 
both Senators to return positive blue slips before scheduling a 
hearing.
  The practice of sending out blue slips to home State Senators started 
100 years ago, in 1917. Chairman Charles Culberson started the blue-
slip practice to solicit the opinions of home State Senators, but he 
did not require the return of two positive blue slips before the 
committee would proceed on a nominee. In fact, in the blue slip's very 
first year, Chairman Culberson held a hearing and a vote for a nominee 
who received a negative blue slip. His successors over the next nearly 
40 years had the same policy. It was not until 1956 that the blue-slip 
policy changed under Chairman James Eastland, a Democrat from the State 
of Mississippi. Chairman Eastland began to require both home State 
Senators to return positive blue slips before holding a hearing and a 
vote.
  Chairman Eastland, as history tells us, was well known for his 
segregationist views. Unfortunately, it is likely that he adopted a 
strict blue-slip policy to veto judicial nominees who favored school 
desegregation. This is what Villanova Law School Professor Tuan Samahon 
explained: ``When segregationist `Dixiecrat' Senator John Eastland 
chaired the Judiciary Committee, he endowed the blue slip with veto 
power to, among other things, keep Mississippi's federal judicial 
branch free of sympathizers with Brown v. Board of Education.''
  After Chairman Eastland retired in 1979, Senator Kennedy became 
chairman. He got rid of Senator Eastland's policy. He didn't want a 
single Senator to be able to unilaterally veto a judicial nominee. 
Senator Kennedy's policy was that an unreturned or negative blue slip 
wouldn't prevent the committee from conducting a hearing on a nominee. 
Then along comes Senator Strom Thurmond, continuing this policy when he 
became chairman. So did Senator Joe Biden. So did Senator Orrin Hatch. 
Each of those chairmen allowed hearings for nominees who had negative 
or unreturned blue slips.
  In 1989, Chairman Biden sent a letter to the White House articulating 
his blue-slip policy. This is what Chairman Biden wrote: ``The return 
of a negative blue slip will be a significant factor to be weighed by 
the committee in its evaluation of a judicial nominee, but it will not 
preclude consideration of that nominee unless the Administration has 
not consulted with both home State Senators prior to submitting the 
nomination to the Senate.''
  Obviously, chairmen from both parties saw the danger of allowing one 
or two Senators to veto a nominee for political or ideological reasons. 
My predecessor, Chairman Leahy, reinstated Chairman Eastland's strict 
blue-slip policy. Some believe he did so in order to exert firmer 
control over the new Bush administration nominees, but even he said he 
wouldn't stand for Senators abusing the blue slip to delay or block 
nominees. Chairman Leahy said the blue-slip courtesy was ``meant to 
ensure that the home state Senators who know the needs of the courts in 
their state best are consulted and have the opportunity to make sure 
that the nominees are qualified'' and should not be ``abused simply to 
delay [the Committee's] ability to make progress filling vacancies.''
  Chairman Leahy also said:

       I assume no one will abuse the blue-slip process like some 
     have abused the use of the filibuster to block judicial 
     nominees on the floor of the Senate. As long as the blue-slip 
     process is not being abused by home-state Senators, then I 
     will see no reason to change that tradition.

  As I have said all along, I will not allow the blue slip to be 
abused. I will not allow Senators to block nominees for political or 
ideological reasons. This position is consistent with the historical 
role of the blue-slip courtesy. It also matches my personal experience 
with the blue slip.
  I am going to tell you about a personal experience I had when I first 
came to the U.S. Senate. In my first year in the Senate, a vacancy 
arose on the Eighth Circuit. At the time, I served with a Republican, 
my senior Senator from Iowa, Roger Jepsen, and we had a Republican 
President, Ronald Reagan. Senator Jepsen and I thought the nominee 
should be a State judge from Des Moines so we recommended his name to 
the White House--not like we do now in Iowa, submit two or three names, 
four names sometimes, for the President to pick from. In 1981, the 
White House decided they would like to consider another name for the 
vacancy. The other individual, Judge Fagg, was a State court judge in 
Iowa. The White House interviewed the judge who was supported by both 
Senator Grassley and Senator Jepsen along with having interviewed this 
other nominee.

  President Reagan, ultimately, nominated the other nominee for the 
vacancy. He was not the person Senator Jepsen and I recommended, but 
the White House thought that he was better suited to the circuit court, 
and that ended up being the correct decision. Judge Fagg served with 
great distinction for more than two decades. Even though he was not our 
pick, Senator Jepsen and I returned our blue slips on the nominee. That 
was not unusual as more deference has always been given to the White 
House, particularly for circuit court nominees, which is different from 
district court nominees.
  When Judge Fagg was nominated to the Eighth Circuit, both Senators 
from Iowa were Republicans, and the blue slip practice did not change 
when Senator Harkin, a Democrat, was elected to the Senate, succeeding 
Senator Jepsen.
  Senator Harkin and I served together for 30 years, and we did not 
have any problems with judicial nominees. Generally, when there was a 
Republican

[[Page S7175]]

President, I sent a list of names to the President, and when there was 
a Democratic President, Senator Harkin sent a list of names to the 
White House. We served together for those 30 years and never had any 
problems with blue slips, not once.
  During the Clinton administration, a vacancy arose on the Eighth 
Circuit. The White House nominated Bonnie Campbell for the court. Ms. 
Campbell was originally from New York and had previously worked for two 
Democratic Senators. For 6 years, she served as chairwoman of the Iowa 
Democratic Party. Ms. Campbell was elected as Iowa's attorney general 
after having defeated the Republican candidate. She also ran for 
Governor against Gov. Terry Branstad. After she lost that election, she 
was appointed by President Clinton to a position within the Department 
of Justice.
  It happens that I liked Ms. Campbell very much. She was not the type 
of nominee I would have picked for the court, but that did not stop me 
from returning my blue slip.
  Ms. Campbell was a controversial nominee. During the campaign for 
Governor, she was quoted discussing Christian conservatives. She said: 
``I hate to call them Christian because I am Christian, and I hate to 
call them religious, because they're not, so I'll call them the radical 
right.''
  Ms. Campbell had a very liberal record and had spent most of her 
career as a politician, and a lot of people did not want me to return 
her blue slip. So why did I return her blue slip? In the process, I was 
criticized extensively by the conservative base of my State of Iowa.
  I did that because the blue slip is not supposed to allow the 
unilateral veto of a nominee. A Senator cannot use a blue slip to block 
a nominee simply because he or she does not like the nominee's politics 
or ideology. A Senator cannot use a blue slip to block a nominee 
because it is not the person the Senator would have picked.
  The President gets to nominate judges. The White House should consult 
home State Senators, and it is important that they do so in a 
meaningful way. The White House may disagree with Senators and may 
determine that a different individual is more suited to serve on the 
circuit court, but so long as there is consultation, the President 
generally gets to make that call. So I will not let Senators abuse the 
blue slip to block qualified nominees for political or ideological 
reasons.
  I yield the floor.
  Mr. SCHUMER. Madam President, I rise today to highlight the 
importance of the Gateway Project and express my continued frustration 
with the administration's approach to infrastructure and this critical 
project. The current Hudson River tunnels were built in 1908 and are 
rapidly deteriorating, a problem that was made far worse by Hurricane 
Sandy. Time is running out, and we must quickly build new tunnels under 
the Hudson River before the current tunnels have to be closed for 
repairs.
  The closing of either tunnel without a new tunnel in place would be 
devastating because it would essentially shut down the Northeast 
Corridor, the transit route from Boston to Washington that produces 
over $3 trillion in economic output, a full 20 percent of the national 
gross domestic product. The importance of this project cannot be 
overstated.
  Unfortunately, despite repeated campaign promises to focus on 
infrastructure investment, President Trump has proposed severe cuts to 
infrastructure programs, including the Capital Investment Grant 
Program. That cut is significant because it was the likely source of 
funding for the Gateway groject. In addition to proposing to cut the 
funding needed for the Gateway Project, the Department of 
Transportation has been unresponsive to a number of important interim 
actions that are necessary to advance this critical project.
  Given the lack of focus on infrastructure investment by the current 
administration and the continued roadblocks the administration has 
erected in front of the Gateway Project, I must oppose the nomination 
of Mr. Derek Kan to be Under Secretary of Transportation.
  Mr. GRASSLEY. I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. ALEXANDER. Madam President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The question is, Will the Senate advise and consent to the Kan 
nomination?
  Mr. ALEXANDER. I ask for the yeas and nays.
  The ACTING PRESIDENT pro tempore. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. CORNYN. The following Senator is necessarily absent: the Senator 
from North Dakota (Mr. Hoeven).
  Further, if present and voting, the Senator from North Dakota (Mr. 
Hoeven) would have voted ``yea.''
  Mr. DURBIN. I announce that the Senator from New Jersey (Mr. Booker) 
and the Senator from New Jersey (Mr. Menendez) are necessarily absent.
  The PRESIDING OFFICER (Mr. Moran). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 90, nays 7, as follows:

                      [Rollcall Vote No. 270 Ex.]

                                YEAS--90

     Alexander
     Baldwin
     Barrasso
     Bennet
     Blumenthal
     Blunt
     Boozman
     Brown
     Burr
     Cantwell
     Capito
     Cardin
     Carper
     Casey
     Cassidy
     Cochran
     Collins
     Coons
     Corker
     Cornyn
     Cortez Masto
     Cotton
     Crapo
     Cruz
     Daines
     Donnelly
     Duckworth
     Durbin
     Enzi
     Ernst
     Feinstein
     Fischer
     Flake
     Franken
     Gardner
     Graham
     Grassley
     Harris
     Hassan
     Hatch
     Heinrich
     Heitkamp
     Heller
     Hirono
     Inhofe
     Isakson
     Johnson
     Kaine
     Kennedy
     King
     Klobuchar
     Lankford
     Leahy
     Lee
     Manchin
     Markey
     McCain
     McCaskill
     McConnell
     Moran
     Murkowski
     Murphy
     Murray
     Nelson
     Paul
     Perdue
     Peters
     Portman
     Reed
     Risch
     Roberts
     Rounds
     Rubio
     Sasse
     Schatz
     Scott
     Shaheen
     Shelby
     Stabenow
     Strange
     Sullivan
     Tester
     Thune
     Tillis
     Toomey
     Van Hollen
     Warner
     Whitehouse
     Wicker
     Young

                                NAYS--7

     Gillibrand
     Merkley
     Sanders
     Schumer
     Udall
     Warren
     Wyden

                             NOT VOTING--3

     Booker
     Hoeven
     Menendez
  The nomination was confirmed.
  The PRESIDING OFFICER. The Senator from South Dakota.
  Mr. THUNE. Mr. President, I ask unanimous consent that with respect 
to the Kan nomination, the motion to reconsider be considered made and 
laid upon the table and the President be immediately notified of the 
Senate's action.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.