In an op-ed Sunday, Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, addressed critics of his use of blue slips, a committee tradition that Republicans continue to abuse. Under this policy, the chairman asks the Senators from a nominee’s home state to submit a blue slip expressing their support or opposition. The consequences have varied over time, depending on who the chairman has been. Leahy’s practice has been to not hold a hearing unless both senators submit their blue slips saying they support letting the committee process the application. As Senator Leahy points out
The Constitution requires presidents to seek both the “advice and consent” of the Senate in appointing judges to lifetime posts on the federal courts. … When senators return this paper, it is proof that the senators elected to represent that state were consulted and the nominee is likely to be confirmed.
Leahy states he “cannot recall a single judicial nominee being confirmed over the objection of his or her home-state senators,” and affirms the importance of home-state support in moving the process forward.
But Leahy also acknowledges that the “judicial confirmation process in the Senate has grown increasingly difficult,” and that Senate practices that bring principles of the Constitution to life do need “ongoing evaluation to make sure they work as intended. And he reiterates that he “would not rule out proceeding with a nomination if the blue slip is abused.”
Indeed, since his election, President Obama has routinely sought the advice of senators through the judicial nominations process. It has been a hallmark of his presidency. But too many Republicans have refused to engage in a cooperative process, instead seeking the authority to pick the nominee themselves, even if it is someone the president would oppose. When that happens, no nomination is made. Other times, the senators withhold the blue slip indefinitely, often refusing to give a reason why, and sometimes even after they themselves recommended the nominee they are now blocking. The result of this abuse has been the worsening of a serious judicial vacancy crisis.
Chairman Leahy has stressed the importance of blue slips in showing that senators have been consulted by the White House. Taking heed of Leahy’s words, Republicans should be wary of continuing the abuse of the blue slip process to block judicial confirmations. Their continued use of this “silent, unaccountable veto” is a detriment to the judicial process. As GOP obstruction continues through withholding of blue slips despite substantial consultation, judicial nominations grow more cumbersome, and the impracticality of this part of the process becomes clearer.
Yesterday, Sen. Diane Feinstein made an extraordinary 40-minute speech on the Senate floor denouncing the Central Intelligence Agency for obstructing congressional oversight by withholding information, intimidating staff involved in a congressional investigation, and removing documents from computers being used by the Senate Intelligence Committee staff. Feinstein, who chairs the Intelligence Committee, has been a long-term public advocate for the intelligence community. CIA Director John Brennan is disputing Feinstein’s charges.
At the center of the dispute with the CIA is a years-long investigation of the detention and interrogation programs carried out in the wake of the 9/11 terror attacks. But the core constitutional issue being raised by Sen. Feinstein is the ability of Congress, operating under rules agreed to by the CIA, to conduct an oversight investigation without being spied on and having its investigation obstructed by the agency.
Sen. Patrick Leahy said he could not think of any more important speech during his many years in Congress. Sen. Mark Udall, who is also a member of the Intelligence Committee, praised Feinstein for “setting the record straight today on the Senate floor about the CIA’s actions to subvert congressional oversight.”
“We applaud Sen. Feinstein for voicing publicly her serious concerns about the CIA’s alleged obstruction of congressional oversight. Congress’s ability to provide oversight for our nation’s intelligence gathering operations isn’t incidental to the work they do—it’s essential. If information was withheld and intimidation tactics were used to deter investigations, this would be a gross abuse of power.
“We depend on Congress’s ability to conduct these investigations in order to protect the separation of powers in our government as well as the fundamental civil liberties guaranteed by our Constitution. We commend Sen. Feinstein for speaking out and calling on the CIA to cooperate rather than obstruct congressional oversight."
When the Senate unanimously confirmed Sri Srinivasan to the Court of Appeals for the D.C. Circuit last month, Republicans patted themselves on the back for cooperating in a relatively efficient confirmation process. But, by any objective standard, Srinivasan’s confirmation process wasn’t that efficient at all. In fact, Republican obstruction of Srinivasan started when they delayed a hearing on his nomination for ten months, from June 2012 to April of this year.
But Sen. Chuck Grassley, the ranking Republican on the Senate Judiciary Committee, is now pushing an alternate history of this delay on Srinivasan’s nomination. In a floor speech the day Srinivasan was confirmed, Grassley insisted that Sen. Patrick Leahy, the chairman of the Senate Judiciary Committee, “made no effort to schedule a hearing on this nominee until late last year.”
In a press release this week, Sen. Leahy explained why this argument is just plain false. In fact, he wrote, it was Senate Republicans who kept insisting that Srinivasan’s hearing be pushed back:
By July 19, 2012, I had determined that the paperwork on the Srinivasan nomination was complete and the nominee could be included in a hearing. It has been my practice as Chairman of the Judiciary Committee to give the minority notice and allow consultation before scheduling a nomination for a hearing. At that time, the next July hearing had been discussed as one devoted to the nominee to head the Antitrust Division at the Department of Justice, a nomination that itself had been delayed and to which there was Republican opposition. During the August recess, my staff asked Senator Grassley’s about holding the hearing on the Srinivasan nomination in September. They raised objections and concerns about proceeding with the D.C. Circuit nomination at that time but agreed to proceed with four district nominees and a Court of International Trade nominee.
In November, 2012, after the American people reelected President Obama, we raised the need for a hearing on the D.C. Circuit nomination anew. Republicans objected, again, in spite of the precedent of holding a hearing for one of President Bush’s D.C. Circuit nominees during a similar lame duck session. Instead, they wanted to proceed only with district court nominees during the lame duck. Republicans insisted that the Srinivasan hearing be put off until the new Congress and the new year. In deference to the Republican minority, I held off. They agreed that he would be included at the first nominations hearing of the 113th Congress.
Then, in early January of this year, when called upon to hold up their end of the bargain, Republicans balked.
This isn’t just a matter of settling a complicated Senate score. Instead, Sen. Leahy is pointing out yet another incident of Sen. Grassley’s twisting the truth about judicial nominees and the judicial nominations process in an attempt to cover for slowing down Senate business and ultimately the business of the federal courts. As Leahy says in his statement:
Those erroneous Record statements have me wondering whether I should be so accommodating to Republican scheduling demands given that they forget their demands in their efforts to avoid responsibility and blame others.