[Congressional Record Volume 164, Number 74 (Tuesday, May 8, 2018)]
[Senate]
[Pages S2539-S2540]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                      Senate's Blue-Slip Tradition

  Let me be serious for a moment. I am the longest serving Member of 
the Senate, I am a former chairman of the Senate Judiciary Committee, 
and I feel obligated to speak up about the erosion of the norms and 
traditions that protect the Senate's unique constitutional role.
  There are only 100 Senators. We should be the conscience of the 
Nation. We have a unique role, but, this week, we are witnessing a 
further degradation of the once-respected role of the blue slip in the 
judicial confirmation process.
  Now, partisans who value only political expediency have argued that 
blue slips are mere slips of paper, but, instead, they represent and 
help preserve something far more meaningful.
  For much of this body's history, blue slips have given meaning to the 
constitutional requirement of advice and

[[Page S2540]]

consent. They have protected the prerogatives of home State Senators. 
They are the ones who have to vouch for somebody from their State, and 
they are the ones who have the most at stake.
  I remember when a dear friend of mine, then-the Senator from Arizona, 
Barry Goldwater, called and asked if he could drop by and see me. He 
had recommended a person to President Reagan for the U.S. Supreme 
Court. It was Sandra O'Connor. He explained how they had looked at a 
number of people, and she was the best. With respect for Senator 
Goldwater, I agreed, and I supported her.
  They have also ensured fairness and comity in the Senate. In many 
ways, traditions like the blue slip have been central to what makes the 
Senate the Senate. All of us, whether we are a Democrat or Republican, 
should care about good-faith consultation when it comes to nominees 
from our own States. The reasons are both principled but pragmatic. We 
know our States better than anybody else. We know who is qualified to 
fill a lifetime appointment to the bench, and, critically, we know the 
one constant in life is impermanence. That is precisely why traditions 
matter.
  When I became chairman of the Judiciary Committee at the start of the 
Obama administration, every single Senate Republican signed a letter 
making the case for the importance of this tradition, and requesting 
that it be respected during the new administration. Republicans said: 
We are unified. We must follow the blue-slip tradition.
  I didn't need that reminder. Under my chairmanship, during both the 
Bush and the Obama administrations, I respected the blue-slip tradition 
without exception, even when it was not politically expedient, even 
when I was attacked for protecting a Republican Senator's prerogative. 
I faced pressure from my own party's leadership to hold hearings for 
President Obama's nominees who had not received blue slips from 
Republican Senators. I was criticized by advocacy groups and even the 
editorial page of the New York Times.

  I resisted such pressure. I did so because I believed then, and I 
still believe now, that certain principles matter more than party. It 
was certainly what every single Republican said they agreed with when 
President Obama was President. Not all Judiciary chairmen followed the 
same blue-slip policy as I did, but Chairman Grassley did follow the 
same policy, at least when there was a Democrat in the White House. 
Last Congress, no judicial nominee received a hearing without both home 
State Senators returning positive blue slips. This Congress, coinciding 
with a change in the White House, there has been a change in the blue-
slip policy. What was sacred to Republicans for the Democrats is not 
sacred to the Republicans for Republicans.
  Tomorrow, the Judiciary Committee will hold a hearing for a nominee 
in the Ninth Circuit, Ryan Bounds. He is opposed by not just one but 
both of his home State Senators. If Mr. Bounds is ultimately confirmed, 
it will mark the first time in the history of the U.S. Senate that a 
judicial nominee is confirmed with opposition from both home State 
Senators. It is nothing we ever thought possible with Republican or 
Democratic Presidents because it would have been too partisan. It would 
have destroyed what is best for the Senate, would destroy the comity of 
the Senate, would destroy the ability for Senators to represent their 
home State.
  Also, this week, the full Senate will consider the nomination of 
Michael Brennan to the Seventh Circuit, over the objection of home 
State Senator Tammy Baldwin. Mr. Brennan's nomination was not even 
supported by the bipartisan Wisconsin Federal Nominating Commission. 
This is a nominating commission made up of Republicans and Democrats. 
They did not support this nomination. For years, this has been a 
longstanding requirement for potential nominees of the Federal bench in 
Wisconsin, and because the bipartisan commission couldn't support him, 
it is no wonder Senator Baldwin cannot, in good conscience, return her 
blue slip.
  Many of us have established processes. I have. I have a bipartisan 
process in my State. Many have established these processes to vet and 
recommend nominees in our home State. Yet somehow Mr. Brennan was 
nominated, and he may be confirmed this week, even though it ignores a 
bipartisan commission.
  Make no mistake, this kind of a confirmation would do lasting damage 
to the Senate's traditions, would do lasting damage to the Senate I 
love, would do lasting damage to a Senate, which I served for almost 44 
years.
  My concern is not about a mere piece of paper. My concern is, we are 
failing to protect the fundamental rights of home State Senators--
Republicans and Democrats alike--and we are failing in our 
constitutional duty to provide our advice and consent. This is a unique 
requirement the U.S. Senators have--advice and consent. There are 100 
of us. Four hundred and thirty-five House Members don't have this; we 
do.
  Mr. Brennan's nomination makes a mockery of the blue-slip process. It 
makes a mockery of the time-tested process that home State Senators 
have abided by in Wisconsin for decades--under both Republican and 
Democratic administrations, and that should concern all of us.
  I understand the pressure on my Republican colleagues to help a 
President from their own party to fill judicial vacancies; even a 
President who attacks the very legitimacy of our judiciary, who tweeted 
attacks against members of the Federal judiciary. The dilemma is that 
yielding to such pressure--undermining a Senate tradition simply due to 
a change in the White House--will do lasting damage to the integrity of 
this body. The Senate should never function as a mere rubberstamp for 
nominees seeking lifetime appointments to our Federal judiciary.
  Some may dismiss these warnings. I served in the Senate long enough 
to know that partisan winds tend to change direction. Inevitably, the 
majority becomes the minority. It has happened several times since I 
have been here. The White House changes hands. That has happened 
several times since I have been here. Then, the shoe is on the other 
foot, which is precisely why maintaining a single, consistent policy is 
so critical.
  I urge my fellow Senators of both parties to consider the damage we 
are doing to this body by abandoning one of the few remaining sources 
of bipartisan good will in our judicial confirmation process. A vote 
for Mr. Brennan is a vote to abandon our ability to serve as a check on 
not just this President but any future President of either party. 
Chasing expediency provides fleeting advantage. It inflicts lasting 
harm on this body, and it is within our power to put a stop to it.
  I urge all my Senate colleagues to ensure that home State Senators 
are provided the same courtesies during the Trump administration the 
home State Senators--both Republicans and Democrats--were provided 
during the Obama administration. For that reason, I ask my fellow 
Senators to oppose Mr. Brennan's nomination unless he has bipartisan 
support from his home State.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Mr. President, first of all, I want to thank the 
distinguished Senator from Vermont, who has been such a role model to 
me since I came to the Senate--we started working together on 
technology issues and worked together on so many matters dealing with 
appropriations and finance--for all his counsel, not just on this but 
over the years. I thank him for the courtesy of being allowed to go 
next.