[Congressional Record Volume 163, Number 188 (Thursday, November 16, 2017)]
[Senate]
[Pages S7285-S7287]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



     Blue Slips and the Nominations of David Stras and Kyle Duncan

  Mr. GRASSLEY. Mr. President, earlier this week, I spoke about the 
history of the blue-slip courtesy. I hope my colleagues will read that 
history as well. I explained in that speech earlier this week that in 
my nearly four decades in the Senate, I have regularly returned my blue 
slip even when I would have preferred that the President had nominated 
someone else.
  Today, I am announcing that the Judiciary Committee will hold a 
hearing for two circuit court nominees, each of whom has one home State 
Senator who has not returned a blue slip containing a positive 
endorsement.
  The hearing for Justice David Stras, nominee to the Eighth Circuit, 
and Kyle Duncan, nominee to the Fifth Circuit, will take place on 
November 29. Both of these nominees appear to be very well qualified, 
and they deserve the Judiciary Committee's further consideration. I 
would therefore like to offer an explanation as to why I am choosing to 
proceed on these nominations and allow the hearing despite the lack of 
two positive blue slips.
  As I explained earlier this week, the blue-slip courtesy is just 
that--a courtesy. For 100 years, the Judiciary Committee chairmen have 
asked for the views of home State Senators on judicial nominees via the 
blue-slip process. The blue slip is meant to solicit insights into 
nominees and ensure that the White House is adequately consulting with 
home State Senators as the advice part of the advice and consent would 
apply.
  Let me be very clear. I will maintain the blue-slip courtesy, but 
some of my Democratic colleagues and leftwing outside groups mistakenly 
assert that the blue slip affords a home State Senator veto power over 
a nominee. That is not true. Only 2 out of the 18 previous chairmen of 
this committee in the last 100 years allowed a single Senator to wield 
veto power over a nominee.
  Senator Joe Biden, when he was the Judiciary Committee chairman, 
articulated what I consider to be a sensible policy with regard to the 
blue slip. He said that a negative blue slip will be a ``significant 
factor'' for the committee to weigh, but ``it will not preclude 
consideration of a nominee'' unless the administration were to fail to 
consult with the Senator. I intend to follow this practice for negative 
and unreturned blue slips. This practice is consistent with the vast 
majority of the blue slip's history.
  I will add that I am less likely to proceed on a district court 
nominee who does not have two positive blue slips from home State 
Senators, but circuit courts, as we know, cover multiple States. There 
is less reason to defer to the views of a single State's Senator for 
such nominees when that nominee is going to serve several States in a 
circuit.
  It is important to remember that the judicial confirmation process 
has changed over the last several years. Previously, when home State 
Senators did not return a positive blue slip, their colleagues often 
defeated that very same nomination on the floor but not in committee.
  When President Bush nominated Carolyn Kuhl to the Ninth Circuit, her 
home State Senators did not return positive blue slips. Chairman Hatch, 
nevertheless, held a hearing and a vote for that nominee. Her home 
State Senators, however, convinced their colleagues to filibuster the 
nominee on the Senate floor. Carolyn Kuhl was never confirmed.
  A few years ago, as we know--I think it was in 2013--Democrats 
abolished the filibuster for nominees to the lower courts. They argued 
that a minority of Senators should not be allowed to block nominees who 
had majority support.
  Our colleague, the Senator from Oregon, said: `` `Advice and consent' 
was never envisioned as a check that involved a minority of the Senate 
being able to block a Presidential [nomination].'' Well, now that 
Senator is withholding his blue slip for a nominee to the Ninth 
Circuit. If he did not believe that 41 Senators should be able to block 
a nominee, he surely wouldn't believe that a single Senator would have 
that right.
  I think the Democrats now seriously regret that they abolished the 
filibuster, as I warned them about at that particular time when they 
were trying to add a lot of people who were not needed on the DC 
Circuit Court of Appeals, as an example--packing the court, in other 
words. They cannot veto it because there is not a filibuster, so they 
want to use the blue slip for that purpose. It is very clear from the 
history of the blue slip that that is not what the blue slip was meant 
for.
  On the other hand, some have argued that the blue-slip courtesy has 
no place in modern judicial confirmations. The LA Times recently 
suggested getting rid of the blue slip, as did the New York Times 
several years ago. Even our committee's ranking member, Senator 
Feinstein, once advocated for abolishing the blue slip.
  I disagree that we should abolish the blue slip. The blue slip serves 
the important purpose of encouraging consultation between the White 
House and the Senate. Otherwise, the constitutional provision of advice 
and consent is just consent. But there is opportunity to advise ahead 
of time. That is what the blue slips help to do. The blue slip serves 
the important purpose of encouraging consultation between the White 
House and the Senate. The White House has an obligation to engage in 
good-faith consultation with home State Senators for the purpose of 
advice.
  I will not allow the White House to just steamroll home State 
Senators, but, as I have said all along, I will not allow the blue-slip 
process to be abused. Ever since last November, when the press had 
asked me about the blue slip, I have said that we are going to honor 
the blue-slip process but that there are always exceptions. I am not 
going to allow Senators to prevent a committee hearing for political or 
ideological reasons. Those are the least reasons not to have a hearing. 
Using the blue slip for these purposes is not consistent with 
historical practice.
  This brings me to one of the two nominations we are having on 
November 29, that of Justice David Stras of Minnesota.
  Justice Stras appears to be exceptionally well qualified. He 
graduated first in his class from the University of Kansas Law School. 
He clerked for both the Ninth Circuit and the Fourth Circuit and then 
for U.S. Supreme Court Justice Clarence Thomas. After several years in 
private practice in Minnesota, Justice Stras joined the faculty of the 
University of Minnesota Law School. He remained there until his 
appointment to the Minnesota Supreme Court in 2010. In 2012, he was

[[Page S7286]]

elected to a full 6-year term on the court by 56 percent of Minnesota 
voters. Think about one's not returning a blue slip when somebody gets 
56 percent of the vote to be returned to the court.
  Justice Stras was raised by a single mother in Kansas. He is the 
grandson of Holocaust survivors. He carries the lessons passed down by 
his grandparents with him each day.

  I want to refer to a writing he just submitted to a leading 
newspaper. Writing recently about their survival in Auschwitz and then 
immigrating to the United States, he recalled that his grandfather had 
``the uncommon gift of being able to see the light of human generosity 
in the midst of near-total darkness.''
  He wrote that his grandparents embraced ``a message of optimism, 
intended to ensure that their children and grandchildren were able to 
lead a life free from the atrocities that they had witnessed.''
  Justice Stras has an impeccable reputation in the Minnesota legal 
community.
  His former colleagues at the University of Minnesota Law School 
describe him as a person who ``engaged in debate respectfully, 
listening to opposing ideas while backing up his own views with facts 
and arguments'' and who ``wanted our students to be exposed to a wide 
range of beliefs.''
  Another group of colleagues of Justice Stras from his days in private 
practice describe this justice as the type of attorney who ``never 
talked down to people'' and ``there was never any hint that he felt 
himself superior to anyone.'' Instead, Justice Stras ``listened to 
others' views, and worked to find an approach to legal problems that 
was both effective and acceptable to everyone on the team.'' They also 
note in that letter his dedication to mentoring young lawyers.
  Despite these accomplishments and accolades, one Senator has withheld 
his blue slip. Evidently, my colleague from Minnesota believes that 
Justice Stras has not even earned a hearing before the Senate Judiciary 
Committee. But the reasons given for withholding the blue slip are not 
consistent with the blue slip's purposes and history.
  Justice Stras was nominated to the Eighth Circuit on May 8, more than 
6 months ago. After many months, my colleague formally announced that 
he would not return a blue slip. He cited Justice Stras's ``deeply 
conservative judicial philosophy,'' as well as his admiration for 
Justice Thomas and Justice Scalia. To me, this amounts to an 
ideological litmus test: Admirers of Justice Thomas and Justice Scalia 
need not ever apply for being on a circuit court.
  The Minnesota StarTribune's editorial board summed it up. They said 
the Senator from Minnesota ``rejected Stras for one reason: the 
justice's conservative views.''
  The editorial board of the largest newspaper in Minnesota echoed the 
retired justice, Paul Anderson:

       While Stras is more conservative than I would like, that is 
     not the point. The question is whether Stras is qualified to 
     serve on the Eighth Circuit. And he is.

  My colleague later claimed that he was not adequately consulted by 
the White House, which would be a legitimate reason for withholding a 
blue slip, as I hope I have implied several times during my remarks 
today and before. So I looked into this by reviewing the records of 
consultation--and thank God the White House keeps pretty good records. 
It is clear the White House earnestly and repeatedly attempted to work 
with both home State Senators. The White House reached out to my 
colleague from Minnesota several times between January and May of this 
year to discuss the Eighth Circuit vacancy that Minnesota supplies a 
member for.
  It wasn't until May 2 that my colleague suggested alternatives to 
Justice Stras. That was more than 3 months after initial contact by the 
White House. Nevertheless, the White House did what they should under 
the Constitution by listening to Senators. They considered my 
colleague's two suggested nominees. I am satisfied that the White House 
adequately tried to consult with both home State Senators as the 
Constitution requires under advice and consent. Therefore, I am not 
going to deny Justice Stras a hearing.
  I would like to say a brief word about Justice Stras's supposedly 
rigid conservative views. The Judiciary Committee has received numerous 
letters attesting to Justice Stras's intellectual honesty and, probably 
more importantly, open-mindedness. It is clear that he has great 
respect for the rule of law, and his tenure on the Minnesota Supreme 
Court demonstrates that, like any good judge, he is able to put aside 
his personal views and apply the law faithfully.
  One letter, written by a bipartisan group of attorneys from Justice 
Stras's former firm, noted that they ``never doubted for a minute that 
he reached his decisions based on his well-considered view of the law, 
and not personal, political, or ideological considerations.''
  They went on to note:

       The lawyers whose names appear at the bottom of this letter 
     span the political spectrum, from Democrat to Republican, 
     liberal to conservative. We differ in our political views, 
     but we are united in our support of Justice Stras's 
     nomination to the Eighth Circuit Court of Appeals.

  There are all kinds of people writing that letter--Democrats and 
Republicans, liberals and conservatives. Why is a Senator concerned 
about the justice's ideological views when people who know him well 
seem to think that is not a consideration because he is going to make a 
good judge?
  A group of former colleagues at the University of Minnesota agree. 
They wrote a letter to the committee stating:

       We are Minnesota law professors with diverse political 
     views ranging from very conservative to very progressive. 
     Some of us have appeared before Justice Stras as advocates, 
     and all of us are familiar with his academic and judicial 
     track records.

  Now as I continue the quote, I want to say to everybody, get this:

       He is no extremist, and he has approached his academic and 
     judicial work without bias or favoritism.

  This support is echoed by his colleagues in my State of Iowa. The 
committee has received several letters of support from the faculty at 
the University of Iowa College of Law where Justice Stras teaches as an 
adjunct professor. Among his supporters are the dean of the law school, 
Gail Agrawal, and Professor Sheldon Kurtz, a self-described ``life-long 
liberal.''
  Justice Stras is a widely respected jurist, and he should have a 
hearing. Ideological differences should not prevent the committee from 
moving forward.
  I would also like to address my decision to hold a hearing for Kyle 
Duncan, a nominee for the Fifth Circuit. He also has not had two 
positive blue slips returned. He is a widely respected appellate lawyer 
who has litigated over 30 cases in Federal and State appellate courts, 
including the U.S. Supreme Court.
  My friend and colleague, Senator Kennedy of Louisiana, has declined 
to return a positive blue slip. However, Senator Kennedy expressed that 
while he is undecided on Mr. Duncan's nomination, he does not oppose a 
hearing for Mr. Duncan. This seems to me to be a very sensible 
approach. It is the correct distinction that a Senator should make when 
deciding whether to return a blue slip. The blue slip is not meant to 
signify the Senator's ultimate support or opposition to the nominee. It 
only expresses a Senator's view about whether the nominee should have a 
hearing.
  Senator Feinstein made this precise distinction in 2003 for Carolyn 
Kuhl's nomination. I referred to that nomination earlier in my remarks. 
Senator Feinstein returned a blue slip which noted that she ``reserved 
judgment'' on Carolyn Kuhl. She also supported holding a hearing for 
Judge Kuhl. Ultimately, after Judge Kuhl's hearing, Senator Feinstein 
decided to oppose confirmation.
  Evidently, the hearing served a useful purpose, and Senator Feinstein 
was able to distinguish between allowing a hearing and supporting a 
nominee. Senator Kennedy has shown that he understands this distinction 
as well.
  I look forward to hearing from Justice Stras and Mr. Duncan at the 
Senate Judiciary Committee hearing on November 29.
  I think that all 100 Senators ought to look at the advice and consent 
clause. We have an opportunity to give advice to a President. We have 
an opportunity then, if that nominee comes up here, to vote for that 
nominee.

[[Page S7287]]

  Do we want to preserve the ``advice'' part of advice and consent? If 
we do, I would suggest that we look at the blue slip as a useful tool 
for accomplishing a very important part of the process. If it is 
abused--at least while I am chairman, you don't have to worry about it 
going away. But if it is abused, someday it will go away, and then all 
we are going to have, when it is all said and done, is consent.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The majority leader.
  Mr. McCONNELL. Mr. President, I listened carefully to the excellent 
remarks of the chairman of the Judiciary Committee, outlining the 
history of the blue slip. I am going to say to the chairman that he has 
outlined a sensible use of the blue slip, which involves consultation 
but does not lead to a one-Senator veto of a nominee.
  I thank the chairman for the history lesson. It is a history lesson 
that the Senate needed to hear.
  I also thank the chairman for the spectacular job that he has done 
all year long with this new administration in processing and bringing 
forward highly qualified nominees. For generations to come, Americans 
who follow the third branch will be indebted to the chairman for the 
way he has handled these nominations, processed them, moved them out on 
to the floor, and given the Senate the opportunity to express its will.
  I wish every Member of the Senate had been able to hear the 
chairman's remarks, but I am certainly going to call these remarks to 
the attention of our Members every opportunity I get, and I thank the 
Senator from Iowa.
  Mr. GRASSLEY. I thank the leader.
  The ACTING PRESIDENT pro tempore. The Senator from Nebraska.