By withholding a blue slip, an individual senator from a judicial nominee’s home state was able to block the nomination. (Per longstanding practice, circuit seats are designated to specific states; more populous states get more seats.) That’s how PA’s Republican Senator Pat Toomey blocked Obama’s nomination of Rebecca Haywood for the Third Circuit seat that Trump just filled with Stephanos Bibas. It’s also how Toomey held up the nomination of Judge Restrepo for over a year.
But blue slips gave senators not just the power to delay or block, but also to influence. Indeed, that’s where their real power was. Only a relative few circuit nominations ended up being blocked outright, but many more were filled with compromise centrists instead of party-base dream picks.
I believe the GOP’s strategy behind eliminating blue slips for circuit nominees isn’t that they’re afraid senators were going to block a few nominees like Stras or Bounds or Duncan. It’s that they don’t want to have to compromise with Democrats and moderate Republicans about any of them. They want every Trump circuit judge to be a conservative home run: young, ideologically committed, and, in Carrie Severino’s words, “well-known in the conservative legal movement.”
As Breitbart explained, “Grassley’s decision clears the path for the president to rack up an impressive number of successful judicial appointments,” and “All of President Trump’s judicial nominees should now make it through” the Judiciary Committee. They don’t care about preserving norms, they care about maximizing advantage. Eliminating blue slips frees them to try.
Let’s look at some numbers to get a clearer sense of the impact.
Today there are 18 circuit court vacancies. Eighteen circuit seats is a lot, more than Obama filled in the final three years of his presidency. Most of those seats — 11 of 18 — are openings that, until last week, Democrats were able to use their blue-slip power to block, slow down, or influence.* No more. When push comes to shove, I expect Democrats to have just as much say in who gets picked for the two pending Second Circuit vacancies from New York, for example, as they had for the two Fifth Circuit openings from Texas: zero.
Dear reader, that’s a big deal.
And it’s a bigger deal in the Third Circuit than anywhere else. Here are the 18 current vacancies (seven of which already have a nominee), listed by circuit:
- CA2 — 2
- CA3 — 2
- CA5 — 4
- CA7 — 3
- CA8 — 2
- CA9 — 4
- DC — 1
Now here’s the same list, but this time I’ve added in parentheses how many of those vacancies Democrats had blue-slip power over before last week:
- CA2 — 2 (2)
- CA3 — 2 (2)
- CA5 — 4 (0)
- CA7 — 3 (3)
- CA8 — 2 (1)
- CA9 — 4 (3)
- DC — 1 (0)
Finally, for each of those circuits, here is the court’s current ideological make-up by the (imperfect!) shorthand measure of how many judges were appointed by presidents of each party:
- CA2 — 7 D, 4 R (+3 D)
- CA3 — 7 D, 5 R (+2 D)
- CA5 — 5 D, 8 R (+3 R)
- CA7 — 2 D, 6 R (+4 R)
- CA8 — 1 D, 8 R (+7 R)
- CA9 — 18 D, 7 R (+ 11 D)
- DC — 7 D, 3 R (+4 D)
Compare those last two lists, and you see that the Third Circuit is where eliminating blue slips matters most:
- The Third Circuit is the only circuit in the country where there already are enough vacancies for Trump to change the court’s overall balance of power; and
- Both of the Third Circuit’s vacancies — one PA, one NJ — were seats that, until last week, Democrats had blue-slip power over.
When PA’s Democratic Senator Bob Casey returned his blue slip for Bibas, he reportedly warned that he would block conservative activist David Porter if Trump nominated him. With blue slips gone, will Porter’s nomination happen now?
For the New Jersey opening, the Trump administration was reportedly negotiating with the state’s two Democratic senators, Cory Booker and Mistrial Bob Menendez, to nominate Chris Christie ally Paul Matey. Will Matey’s nomination happen now? Or was he a compromise, one the GOP no longer cares to make?
Exchanging Judges Rendell, Fuentes, and Fisher for Bibas plus two committed conservatives is intended to have an impact, and I have no doubt that it would.
Eliminating blue slips will matter in the Second Circuit too, but not quite as much yet. It will also matter in the Seventh and Ninth Circuits, but not nearly enough to change the overall balance of either court.
These are chaotic times, so it’s hard to be sure how all this will play out. Grassley could change his mind again. The Trump presidency could implode. Republicans could lose the Senate before they manage to fill these seats. Senate Democrats could exercise leverage over judicial nominations in other ways. Trump could stop doing Leonard Leo’s bidding. Moderate Republican senators could stop doing Trump’s bidding. Republicans could moot the whole shebang by enacting Federalist Society co-founder Steven Calibresi‘s poisonous new court-packing scheme. Or, nuclear holocaust. No one knows.
But this much is clear: last week, the first phase of Trump’s transformation of the circuit courts ended. It went better than conservatives could have dared to hope, but this was only the first 11 months. Conservatives hope it’s just the beginning.
* I calculated myself all the blue-slip and appointing-president stats in this post. The circuit vacancies are here, the judges’ chambers are on the circuit websites or Wikipedia, the judge’s appointing presidents are here or on Wikipedia, and the party of each state’s senators is here. (Fellow nerds: Yes, I realize it’s theoretically possible for a judge to have her/his chambers in a state different from that seat’s home state, yet still be within the circuit so that the switch is not obvious. I know that’s not the case for several of the 20 seats discussed here, and I’ve assumed it’s not for the rest, either.)