Last week, Brennan was confirmed as a Trump administration nominee to that very same seat despite vigorous objections by the state’s Democratic senator.
That incongruity is at the heart of what is fast becoming one of the most significant questions on Capitol Hill: How far will Republican senators go in pushing through President Donald Trump’s judicial nominees over the objections of Democrats from states where the potential new judges will preside?
The answer: pretty far.
Brennan was the second federal appellate court nominee confirmed despite a refusal by one home-state Democrat to consent to the nomination through the long-standing Senate tradition of signing and returning a blue-tinted form — known universally as the blue slip — demonstrating acquiescence in the presidential appointment.
Now the Senate Judiciary Committee could send to the floor a disputed nominee from Oregon who is opposed by both of that state’s senators, a major break with Senate custom. According to the Congressional Research Service, it would be the first time since at least 1979 that a federal judge could be confirmed over the objections of both home-state senators. Democrats believe it could be the first time ever.
But Republicans are making it very clear they are willing to push the institutional envelope while exulting in what they have accomplished to date when it comes to remaking the federal judiciary.
“One-eighth — one-eighth — of the circuit judges in America have been appointed by Donald Trump and confirmed by this Republican Senate,” a triumphant Sen. Mitch McConnell, R-Ky., the majority leader, said Tuesday after the Senate approved its 21st Trump appeals court judge.
With little else moving on Capitol Hill, McConnell; the White House; and Sen. Chuck Grassley, R-Iowa, chairman of the Judiciary Committee, have turned confirmation of federal judges into their overriding priority. And in severely weakening the power of the blue slip, they have greatly diminished the ability of Democrats to stop them.
The fight is entering new territory with the pending nomination of Ryan Bounds, a federal prosecutor in Oregon whose nomination to the 9th U.S. Circuit Court of Appeals has moved forward over the objections of Oregon’s two Democratic senators, Ron Wyden and Jeff Merkley. They have accused Bounds of withholding racially insensitive articles he wrote as an undergraduate at Stanford University. Bounds has apologized for the published opinion pieces, saying they were misguided and objectionable views that he has discarded as an adult.
But the Oregon senators and most other Democrats were not mollified. They say Republicans are shredding a Senate practice instituted in 1917 to make certain that members of Congress have a say in the selection of federal judges installed in their states. Wyden accused Republicans of “bowing down” to the White House.
“It is a dangerous mistake that is going to have harmful consequences for decades,” Wyden warned.
The Republican action comes as no surprise. McConnell made it clear from the beginning of the Trump administration that he had no intention of allowing Democrats veto power over nominees to the appellate courts by withholding blue slips. Grassley quickly fell into line.
“I won’t allow the blue slip to be abused in this way,” he said recently as he came under attack by Democrats who assailed him for unilaterally discarding Senate tradition. “The blue slip is meant to encourage consultation between the White House and home-state senators. It’s not a way for senators to have veto power over nominees for political and ideological reasons.”
Republicans argue that respect for the blue slip has varied from chairman to chairman of the judiciary panel over the decades. That is the case, but the tradition has ultimately been honored far more than not, and the Congressional Research Service report found confirmation of judges at any level without at least one home-state blue slip has been exceedingly rare.
Contributing to the current conflict is the fact that the last Democratic chairman of the Judiciary Committee, Sen. Patrick J. Leahy of Vermont, scrupulously adhered to the blue slip policy. That approach allowed Republicans to block Obama administration nominees for their states, creating a backlog of vacancies that Republicans are now able to fill with the help of skirting the blue slip custom.
“Mr. Brennan’s nomination makes a mockery of the blue slip process,” Leahy declared last week on the floor. “And it makes a mockery of the time-tested process that home-state senators have abided by in Wisconsin for decades. That should concern all of us.”
Grassley was unmoved, saying that it had been Leahy's “prerogative” to follow a more stringent blue slip policy, but that he would not be bound by it.
A major test lies ahead when it comes to multiple vacancies on the liberal-leaning 9th Circuit. California’s two Democratic senators, Dianne Feinstein and Kamala Harris, have suggested nominees for open court seats. If the Trump White House goes in another direction, Republicans might have to override the objections of the Californians despite the fact that both sit on the Judiciary Committee and Feinstein is the top Democrat. But Grassley noted recently that the case of Bounds shows he is willing to disregard dual home-state opposition.
As for Brennan, now a judge, he was the lead author of a 2011 op-ed article in which he and others argued that Ron Johnson, then a newly elected Republican senator from Wisconsin, had the right to withhold his blue slip for Victoria Nourse, an Obama administration nominee for a seat on the 7th U.S. Circuit Court of Appeals, because Johnson was not consulted in her selection. Johnson never provided a blue slip, and the Nourse nomination languished.
In August, Trump nominated Brennan to the seat. This time, Sen. Tammy Baldwin, D-Wis., refused to return a blue slip. But Grassley moved forward regardless. Brennan was confirmed last Thursday to a lifetime appointment on a party-line vote of 49-46.
During his confirmation hearing in January, Brennan was asked how he could support blocking a nomination over a blue slip in Nourse’s case but not his own. He replied that the circumstances were different. And indeed they were — he was now the nominee, not Nourse.
This article originally appeared in The New York Times