[Congressional Record Volume 163, Number 193 (Tuesday, November 28, 2017)]
[Senate]
[Pages S7348-S7350]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



          American Bar Association and the Blue-Slip Courtesy

  Mr. HATCH. Mr. President, I rise today to address two elements of the 
Senate's process for evaluating judicial nominations: the role of the 
American Bar Association and the so-called blue-slip courtesy. Each can 
influence the appointment process, and we must be diligent to ensure 
that neither is abused.
  The Eisenhower administration was the first to request the input of 
the ABA--American Bar Association--on prospective judicial nominations. 
Speaking to the 1955 ABA convention, President Eisenhower thanked the 
ABA for helping him and his advisers to ``secure judges'' of the kind 
he wanted to appoint. If that sounds as though the ABA was a part of 
the administration, it was.
  The ABA evaluated individuals before they were even nominated. 
Individuals deemed not qualified by the ABA were almost never 
nominated. No other interest group was given such a quasi-official veto 
over nominations to any other office.
  What could justify such a special role for an interest group? What 
could do that? The theory is that the ABA was a nonpolitical 
professional association concerned only with the legal profession and 
the practice of law.
  At its 1933 annual meeting in Grand Rapids, MI, for example, the 
ABA's executive committee considered changing the ABA constitution to 
allow ``discussion and expressions of opinion on questions of public 
interest.'' After arguments that this would revolutionize the scope and 
purpose of the ABA, no one--not one person--supported the amendment, to 
the best of my knowledge.
  In February 1965, ABA President Lewis Powell, who later served on the 
Supreme Court, wrote that ``the prevailing view is that the Association 
must follow a policy of noninvolvement in political and emotionally 
controversial issues.'' If that view actually prevailed in 1965, it did 
not last.
  The ABA House of Delegates soon crossed the political Rubicon and 
began taking positions on a host of issues through Federal arts 
funding, affirmative action, the death penalty, welfare policy, 
immigration; you name it, and the ABA has endorsed the liberal 
position, oftentimes the most liberal position. The ABA not only opines 
on such issues through resolutions but also lobbies legislatures and 
files briefs in court cases.
  The ABA has done exactly what it chose not to do back in 1933 and 
revolutionized the scope and purpose of the organization. It abandoned 
nearly a century of noninvolvement in political issues, the condition 
that was said to justify a special role in the judicial appointment 
process. It hardly seemed reasonable that the ABA could somehow seal 
off its evaluation of judicial nominees from all of this political 
activism so that its conclusions could still be trusted.
  In 1987, several members of the ABA evaluation committee said that 
Judge Robert Bork was not qualified to serve on the Supreme Court. I 
said at the time that the ABA was ``playing politics with the 
ratings.''
  Three years later, several of us on the Judiciary Committee, 
including now-Chairman Grassley, expressed the same view in a letter to 
Attorney General Richard Thornburgh. We wrote that the ABA ``can no 
longer claim the impartial, neutral role it has been given in the 
judicial selection process.''
  This conclusion has been bolstered by academic research. In 2001, 
Professor James Lindgren of Northwestern University law school 
published a study in the Journal of Law & Politics that examined ABA 
ratings for nominees of Presidents George H.W. Bush and Bill Clinton. 
Controlling for race, gender, and a range of objective measurable 
credentials, Professor Lindgren found that Clinton nominees were 10 
times--10 times--more likely than Bush nominees to be rated well 
qualified by the ABA. In fact, he found that ``just being nominated by 
Clinton instead of Bush is better than any other credential or than all 
other credentials put together.'' Professor Lindgren concluded that 
``the patterns revealed in the data are consistent with a conclusion of 
strong political bias favoring Clinton nominees.''
  A decade later, three political scientists published a study in the 
Political Research Quarterly, looking at ABA ratings for U.S. Court of 
Appeals nominees over a 30-year period. Applying recognized social 
science methods, they concluded that ``individuals nominated by a 
Democratic president are significantly more likely to receive higher 
ABA ratings than individuals nominated by a Republican president. . . . 
[W]e find . . . strong evidence of systematic bias in favor of 
Democratic nominees.'' You don't say.
  President Trump recently nominated Steven Grasz to the U.S. Court of 
Appeals for the Eighth Circuit. The distinguished Senators from 
Nebraska have, in the Judiciary Committee and here on the Senate floor, 
detailed Mr. Grasz's extensive experience and wide support throughout 
the legal community. He served as chief deputy attorney general of 
Nebraska for nearly a

[[Page S7349]]

dozen years, during which time he defended the constitutionality of the 
State's law banning partial-birth abortion. That might have been his 
most serious sin in the eyes of the ABA, which has aggressively 
embraced the abortion agenda for more than four decades.
  In 1969, the ABA formed a committee on overpopulation, which 
immediately launched a project on the law of abortion and endorsed the 
Uniform Abortion Act in 1972, even before the Supreme Court's now-
infamous Roe v. Wade decision legalizing abortion on demand. The 
committee endorsed Federal funding of abortion in 1978, and in 1990, by 
more than two to one, they opposed any requirement of parental 
notification before abortions are performed on minors. The ABA, again, 
fully embraced the abortion agenda in 1992 and never looked back. It is 
no wonder that they would deem someone like Mr. Grasz not qualified for 
the bench.
  President Trump has also nominated Brett Talley to the Federal 
district court in Alabama. Tally attended Harvard Law School. He spent 
years in a prestigious clerkship at the Federal appellate and trial 
court levels. He has worked here in the Senate. He has served as a 
deputy solicitor general of the State of Alabama. He has served in the 
Justice Department most recently as Deputy Assistant Attorney General 
in the Office of Legal Policy. He enjoys the support of both of 
Alabama's home State Senators and has a sterling reputation in the 
legal community. Yet he, too, has been deemed not qualified by the ABA. 
How is that possible? That determination is nakedly political and 
should not be taken seriously.
  The ABA once defined its purpose in terms of the legal profession and 
the practice of law. It has, however, chosen a different path. By doing 
so, the ABA has not only abandoned what once might have justified its 
role in judicial selection but has also cast serious doubt on the 
credibility and integrity of its judicial nominee ratings. The ABA was, 
of course, free to do so, but it should not expect that its actions 
have no consequences.
  The other element of the judicial confirmation process that I want to 
address is the so-called blue-slip courtesy. This is an informal 
practice, begun in 1917, by which the Judiciary Committee chairman 
seeks the views of Senators regarding nominees who would serve in their 
States. This practice really gets noticed only when the President and 
Senate majority are of the same party. In that situation, as we face 
today, the question is whether a home State Senator can use the blue-
slip courtesy to block any Senate consideration and, therefore, 
effectively veto a President's nominees.
  Since the blue-slip courtesy was established, 19 Senators, including 
myself, have chaired the Judiciary Committee--10 Democrats and 9 
Republicans. Only 2 of those 19 chairmen treated the blue-slip courtesy 
as a single-Senator veto. One of them, apparently, was to empower 
southern segregationist Senators to block judges who might support 
integration.
  The other 17 chairmen fall into two categories. The early chairmen 
allowed objecting home State Senators to present their views in the 
nominee's confirmation hearing. In the last few decades, chairmen of 
both parties have said that a negative blue slip would not veto a 
nominee if the White House consulted in good faith with the home State 
Senators. That is the approach that Chairman Joe Biden took and that I 
continued when I was chairman, each of us under Presidents of both 
parties.
  The blue-slip courtesy, then, has been a way to highlight the views 
of home State Senators and to encourage the White House to consult with 
them when choosing judicial nominees. And it works. When chairmen of 
both parties have chosen, only a handful of times, to proceed with a 
hearing for a nominee who lacked two positive blue slips, their 
decision was consistent with this approach.
  Today, Democrats want to rewrite the history of blue slips and 
redefine the very purpose of the courtesy behind the process. They want 
to weaponize the blue slip so that a single Senator can, at any time 
and for any reason, prevent Senate consideration of judicial nominees. 
They want to change the traditional use of the blue slip because they 
can no longer use the filibuster to defeat judicial nominees who have 
majority support.
  Democrats opposed filibustering judicial nominees during the Clinton 
administration. Then, in just 16 months during the 108th Congress, 
Democrats conducted 20 filibusters on judicial nominees by President 
George W. Bush. These were the first judicial filibusters in history to 
defeat majority-supported judicial nominees.
  The filibuster pace dropped by two-thirds under President Obama when 
Republicans conducted just 7 filibusters in 30 months. Claiming that 
declining filibusters were nonetheless a crisis, Democrats in 2013 
abolished nomination filibusters for all executive and judicial 
nominations except for the Supreme Court.
  Democrats took away the ability of 41 Senators to block consideration 
of judicial nominations on the Senate floor, but now they demand that a 
single Senator have that much power in the Judiciary Committee by 
turning the blue-slip courtesy into a de facto filibuster. Like the 
ABA's rating of nominees, nothing but politics explains this flip-
flopping and manipulation of the confirmation process.
  On October 31, I addressed this issue here on the Senate floor and 
suggested that the history and purpose of the blue-slip courtesy could 
help guide its application today. I still believe that. The views of 
home State Senators matter, and the White House should sincerely 
consult with them before making nominations to positions in their 
States. Home State Senators enjoy countless ways to convey their views 
to colleagues here in the Senate, and every Senator may decide whether 
and how to consider those views. But in the end, the blue slip is a 
courtesy, not an absolute veto. This distinction matters because 
tomorrow the Judiciary Committee will hold a hearing on a nominee to 
the U.S. court of appeals from a State with two Democratic Senators. 
One has returned the blue slip; the other has not.

  Chairman Grassley's decision to hold a hearing is completely 
consistent with the history and purpose of the blue-slip courtesy. 
Democrats falsely claim that Chairman Grassley is eliminating what they 
say is a longstanding precedent that home State Senators may 
automatically veto appeals court nominations. No such precedent exists, 
or ever has, unless the practice of only two chairmen for only a 
fraction of the last century constitutes controlling precedent--and we 
all know it shouldn't.
  It is beyond hypocritical for Democrats to pretend they actually care 
about the confirmation process precedent. They began the practice of 
forcing time-consuming rollcall votes for nominees with no opposition 
at all. They began the practice of using the filibuster to defeat 
majority-supported nominees. They began the practice of forcing the 
President to renominate individuals multiple times. They began the 
practice of forcing cloture votes on unanimously supported judicial 
nominees and then delaying a confirmation vote for days. These weren't 
actions undertaken by Republicans. There is one side, and one side 
only, that has continuously pushed this envelope.
  Democrats cite a 2009 letter to President Obama from the Republican 
conference and an op-ed I publishing in 2014 defending the blue-slip 
courtesy. In each situation, the Democratic majority was actually 
threatening to abolish the blue-slip policy altogether. In my op-ed, I 
emphasized that the blue-slip courtesy is intended to encourage 
consultation by the White House with home State Senators.
  When he became chairman in 2015, Senator Grassley explained the blue-
slip process to his constituents in a Des Moines Register op-ed. He 
wrote that the process has value and that he intended to honor it. He 
is doing just that by returning to the real history and purpose of the 
blue-slip courtesy.
  My Democratic colleagues seem to think that the confirmation process 
should be whatever they want it to be at whatever moment they so 
choose. Now they demand that, contrary to most of the last century, a 
single Senator should be able to do informally what 41 Senators can no 
longer do formally. They demand following precedent that does not exist 
while creating new obstruction precedents of their own. Democrats have 
forced the Senate

[[Page S7350]]

to take 60 cloture votes on nominations so far this year, 13 of them on 
judicial nominations. That is nearly nine times as many as during the 
first year of all new Presidents--all new Presidents--since the cloture 
rule was applied to nominations in 1949.
  I have been in the minority a number of times, multiple times. I get 
it. Democrats want their way, and they don't always get it. That hardly 
means that the majority in general and Chairman Grassley in particular 
are not being fair, consistent, or evenhanded. The blue-slip courtesy 
has a history, and it has a purpose. It exists to allow home State 
Senators to share their views with the Judiciary Committee and to 
encourage White House consultation with them before making nominations.
  Neither a liberal interest group like the American Bar Association 
nor abuse of the blue-slip courtesy should be allowed to further 
distort and politicize the judicial confirmation process.
  It is a disgrace. It really is a disgrace, the way the Democrats 
changed the rules automatically, overnight, without even consulting 
with Republicans, and doing it solely to give advantage to their side, 
even though this is a process that really ought to have fair treatment 
on both sides at all times.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. RUBIO. Mr. President, I ask unanimous consent that I be allowed 
to complete my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.