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Why is Grassley Tying Blue Slips to the Filibuster Rules Change?

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Judiciary Committee chairman Chuck Grassley has eliminated the longtime blue slip policy: Despite opposition from home state senator Al Franken, Grassley will hold a hearing for Minnesota Supreme Court Justice David Stras.

Grassley foreshadowed this a day earlier, in a highly misleading op-ed on blue slips for The Hill, seeking to justify the sharp change in blue slip policy he has been threatening to impose in order to get more of President Trump’s controversial nominees confirmed.

Some background: When Grassley became chairman in the last two years of the Obama presidency, he continued the blue slip policy of his predecessor, Democrat Pat Leahy: He would hold no hearings for any judicial nominee without the consent of both home state senators. When Donald Trump was elected, Grassley announced that he would continue this policy, just as Leahy had applied the same rules to Obama’s nominees as he had to George W. Bush’s. He also gave his personal assurance to Leahy. Not changing the rules when it becomes convenient to “your side” is a sign of an honorable person.

But unlike Leahy, who adhered to the policy without exception, Grassley has been threatening to go back on his word. His piece in The Hill is the latest effort to reframe history to do that – to go back on his word to Sen. Leahy and to the American people.

The entire piece is filled with holes, but this post will focus on just one of them: Grassley’s reference to the Democrats’ 2013 filibuster rules change:

But now that they are in the minority, Democrats are scrambling to cope with the fallout from their decision to deploy the nuclear option. Some of the strongest supporters of the nuclear option now argue that a single senator should be able to block a nominee before even receiving a hearing.

But the rules change for votes on the Senate floor had nothing to do with Committee blue slips, and in fact, it had no impact on blue slips. After the change, with the support of ranking member and then Chairman Chuck Grassley, a single senator frequently blocked a nominee from having a hearing. For instance, at the time of the rules change, Marco Rubio was using the blue slip to block William Thomas from having a hearing. The rules change didn’t alter Senator Rubio’s ability to use his blue slip: Thomas still could not get a hearing, and Obama chose another nominee who had Rubio’s support. The rules change didn’t change anything for pending nominees without blue slips.

Nor did the rules change affect Committee blue slip practices for new nominations. After the rules change, home-state senators were still able to prevent committee hearings. While Grassley chaired the committee, well after the rules change, he let GOP senators prevent hearings for Rebecca Haywood (Third Circuit), Lisabeth Hughes (Sixth Circuit), Myra Selby (Seventh Circuit), and Abdul Kallon (Eleventh Circuit), among others. Grassley did not complain that a single senator could prevent a hearing; to the contrary, he is the one who made that possible.

There is another serious flaw in Grassley’s reference to the rules change. He asserts that changing the blue slip policy would serve the functions that Democrats were seeking when they changed the rules for filibustering lower court nominees. For that to make any sense, he dramatically rewrites history to explain why the Democrats changed the rules. Grassley suggests it was because Democrats thought the majority should always be able to exercise its will on those nominees and never allow a minority of any size to block them.

That is false. The GOP was using the old rules not to block nominees they found objectionable, and not to respect the influence of home state senators. Instead, they were using the 60-vote cloture rule to prevent the president from filling any vacancy on the D.C. Circuit, regardless of who that nominee might be. At the time, there were three vacancies on the 11-member court, and Grassley led the charge in opposing all three nominees to fill them. Committee Republicans even expressed their admiration for specific nominees as they vowed to block them simply because Obama was nominating them.

Grassley and his colleagues could not unilaterally rewrite the congressional mandate that the D.C. Circuit have 11 judges. (Nor could any of them exercise their rights under the blue slip policy, because there are no senators from the District of Columbia.) So they used the 60-vote cloture margin to accomplish the same thing.

They could have used the filibuster as it had been used in the past: as a tool to reach compromise with the White House on selecting nominees who could get bipartisan support. But that was not enough for the Republicans: They were going to prevent the president from naming anybody to fill certain vacancies. This foreshadowed their later unprecedented blockade of President Obama’s nominee Merrick Garland to the Supreme Court.

The blue slip controversy has enormous implications for the entire country. Its resolution depended on one thing: Chuck Grassley’s character.

We learned a lot about Chuck Grassley today.