Grassley Full Steam Ahead on Appeals Court Judges

Last Wednesday (24 Jan.) Sen. Grassley, as Chairman of the Judiciary Committee, held a hearing on the nomination of Michael Brennan to the 7th U.S. Circuit Court of Appeals, which serves the three states of Illinois, Indiana, and Wisconsin; Mr. Brennan, a Milwaukee attorney, was chosen the President to fill a Wisconsin-held seat on the Chicago-based court, a seat which has been vacant for 8 years, since Judge Terence T. Evans moved to senior status (Jan. 2010). Now Chairman Grassley is being criticized on five separate grounds: for disregarding a state selection-process, for hypocrisy, for violating a senate tradition, for disrespecting a female colleague, and for rubber-stamping Trump judicial nominees.

Let’s take the charges one-by-one.

It is true that in the normal course of things, since 1979, a bipartisan state commission makes recommendations to the two senators from Wisconsin, who forward the names to the White House for consideration, and it is true that Mr. Brennan was not recommended. But it is also true that no one else was, either: the six-member commission invited applications in Feb. 2017, and none of the applicants secured the supermajority, five of six members, required for a recommendation; a spokesman for Sen. Ron Johnson (R-WI) pointed out that Mr. Brennan had received bipartisan support, being backed by all three Republican commissioners and by one of the three Democrats; in fact, as Sen. Grassley noted at the hearing, he was the only applicant to receive bipartisan support from the commission. It is not the fault of Sen. Grassley that the process yielded no names which could be forwarded by the home-state senators to the White House; nor is it true, notwithstanding the assertion to that effect in news reports, that Mr. Brennan is the first nominee lacking recommendation by the commission since its inception: the same thing happened as long ago as 2016! It would be fairer to say that the dysfunctional commission forfeited its role by its failure to agree on any names, and a rather thoroughgoing failure it was, in view of the fact that the commission recommended four individuals for a single vacancy on the U.S. District Court for the Eastern District of Wisconsin in August. In any case, the process, however convenient it might be for the senators from Wisconsin, who otherwise would have to organize a search themselves, is relatively new, and is not foreseen by the Constitution, unlike the power of the President to nominate judges, as Sen. Grassley observed at the hearing: “the commission’s current shortcomings can’t be allowed to impede the President’s constitutional duty to appoint federal judges.” (

Nor is the charge of hypocrisy, leveled in a very biased account of the hearing which just appeared in the Des Moines Register (, at all accurate; Sen. Grassley is accused of “hypocrisy” because “when President Obama was in office, Grassley obstructed nominees at a record rate.” The facts are otherwise: Sen. Grassley held hearings in 2016 on the second nominee of President Obama for the same position, Donald Schott, despite his inability to secure a recommendation from the state commission; Sen. Johnson (who had not returned his blue slip for Victoria Nourse, the first Obama nominee for the seat) returned his blue slip and Mr. Schott was voted out of the committee, but no action was taken on the floor. Sen. Tammy Baldwin (D-WI) made no complaint at that time about President Obama pursuing a “partisan approach that disrespects our Wisconsin process,” as she did last August, when President Trump nominated Mr. Brennan; in short, the real hypocrite in this episode is Sen. Baldwin, who was fine with an Obama nominee without a recommendation from the state commission, but complains about a Trump nominee lacking that recommendation.

The senate tradition supposedly violated is the “blue slip,” which a home-state senator returns to the chairman of the committee to indicate that he or she has no objections to the nominee; a returned blue slip does not indicate that the senator intends to vote in favor of the nomination, but merely that he or she has no objection to proceeding with a hearing. Although Sen. Johnson did return his blue slip for the nomination of Mr. Brennan, Sen. Baldwin, by contrast, did not return hers; in the version of the Register, Sen. Grassley by holding a hearing “abandoned the blue-slip process,” but the article fails to note that the restriction on blue slips applies primarily to appeals court judges and thus gives a very misleading impression of the scope of the decision. In truth, Sen. Grassley stated at the hearing that an unreturned blue slip could prevent a hearing on a nominee to be a U.S. district judge, U.S. marshal, or U.S. attorney; in the case of appeals court judges, however, he decided that failure to return a blue slip would not prevent a hearing, as long as the White House consulted with the home-state senator; although Sen. Baldwin claimed that “no meaningful consultation” had taken place, Sen. Grassley after reviewing the outreach efforts of the White House determined that she had been adequately consulted. Majority Leader Mitch McConnell (R-KY) back in Nov. 2017 credited Sen. Grassley with outlining “a sensible use of the blue slip, which involves consultation but does not lead to a one-senator veto of a nominee”; he had already in the preceding month stressed that the use of blue slips was a custom rather than a rule, and in the month prior to that argued that it was unfair to allow a single senator to block an appeals court nominee since those judges exercise jurisdiction over several states.

Not even in the case of appellate judges, however, did Sen. Grassley violate any senate tradition; quite the opposite: he was compelled to make a decision due to the absence of any clear or unbroken tradition as to the scope of the blue slip. Allowing an unreturned blue slip by a single home-state senator to block consideration of a nominee—ironically, given that proponents of that view are liberals or progressives hoping to block Trump nominees from states where at least one of the senators is a Democrat—is a practice invented by segregationist James O. Eastland (D-MS), longtime chairman of the committee (1956-1978), who did not want federal judges in Mississippi who agreed with Brown v. Board of Education; in the 100-year history of blue slips, Patrick Leahy (D-VT) was the only other chairman (2001-2003, 2007-2015) to treat an unreturned blue slip like a veto; Sen. Leahy thus ignored his two immediate predecessors in his own party, Edward M. Kennedy (D-MA), chair for just a little over two years (Dec. 1978-1981), and Joseph R. Biden (D-DE), chair for eight years (1987-1995), whereas Sen. Grassley is proceeding as all his Republican predecessors have proceeded.

The allegation of disrespect for a female colleague, made by the ranking minority member of the committee, Sen. Dianne Feinstein (D-CA), is preposterous, since on 29 November last year Chairman Grassley proceeded in exactly the same fashion over the objections of a male colleague: then it was Al Franken (D-MN) who had not turned in his blue slip on the nomination of David Stras to the 8th U.S. Circuit Court of Appeals.

The accusation that Sen. Grassley has been rubber-stamping Trump nominees is no better than the others. The truth is that Sen. Grassley in Dec. 2017 successfully urged the White House to drop two U.S. District Court nominees: Brett Talley, who had been nominated for the Middle District of Alabama, and Jeff Mateer, who had been nominated for the Eastern District of Texas. Readers old enough to remember when Grassley defeated the incumbent, John Culver, in 1980, and his subsequent first term in the U.S. Senate, will also remember that he was not a rubber-stamp even for President Reagan; it is simply not the way he has ever operated, and it was not lost on the voters: when facing re-election for the first time, in 1986, he was overwhelmingly re-elected in a year which was very bad for Republicans nationally.

The Trump Administration set a record for the first year of a presidency with 12 federal appellate judges confirmed; the circuit courts were not created until 1891, so the comparison of President Trump with his predecessors reaches back only to Grover Cleveland in 1893; the previous record, 11 circuit court judges, had been jointly held by Presidents Kennedy and Nixon. One key to the success of the Administration in getting judges confirmed has been the hard work of Chairman Grassley, who has himself engaged with the home-state senators of nominees to get them to return their blue slip; another key has been the unusual degree of consultation with home-state senators by the White House, specifically by Leonard Leo, presidential adviser for judicial nominations, and Don McGahn, White House counsel. And it has to be said, in all fairness, that the Democrats contributed to the result: despite their recent obstructionism, their fight against lower-court nominees was doomed by their own decision, when they were in the majority in 2013, to do away with the possibility of a filibuster on judicial nominees other than those to the Supreme Court, thus eliminating the power of the minority to block a nomination with 41 votes. Instead of admitting that their inability to stop nominations is something which they brought on themselves, Democrat senators and their media allies now concoct specious arguments against Trump judicial nominees or the confirmation process; perhaps Ronna Romney McDaniel, Chair of the Republican National Committee, should, in the spirit of bipartisanship, take out a full-page ad in a few publications and thank by the name the Democrat senators who voted for that rules change.