During today's Senate Judiciary Committee hearing for Michael Brennan, nominated for the Seventh Circuit Court of Appeals, the Democrats objected to Chairman Grassley holding a hearing for Judge Brennan even though Senator Tammy Baldwin of Wisconsin did not return her blue slip. There were even protesters in the gallery in blue shirts (part of an ongoing protest by the Center for American Progress and People for the American Way) and predictable gender-baiting by Democrats simply because Sen. Baldwin happens to be female.
But as Chairman Grassley pointed out in his opening statement, the consultation purpose of the blue slip has been fulfilled:
As I’ve explained, a negative or unreturned blue slip won’t necessarily prevent a Circuit Court nominee from receiving a hearing, unless the White House failed to consult with home-state senators before choosing the nominee.
After reviewing the record, it’s clear the White House adequately consulted with Senator Baldwin regarding the nomination. In addition to Mr. Brennan, the White House also considered two candidates Senator Baldwin suggested.
Senator Baldwin expressed to me that she’s frustrated by the state of Wisconsin’s judicial nominating commission, which has been dysfunctional and unable to recommend candidates for judicial vacancies. While I sympathize with this concern, the commission’s current shortcomings can’t be allowed to impede the President’s constitutional duty to appoint federal judges.
I’ll also note that [Republican] Senator Johnson returned his blue slip for President Obama’s most recent nominee for this seat last Congress, even though the commission had also failed to act in accordance with its charter in that situation. I held a hearing for this nominee, and he was voted out of the Committee.
The Wisconsin judicial nominating commission is composed of six members, three from each party, and the support of five members is required for a judicial candidate to receive the commission's approval. Sen. Baldwin's reliance on the "dysfunctional" commission's approval in this case is inconsistent with her actions on this vacancy while President Obama was in office. Then, Sen. Baldwin submitted all eight potential nominees the commission had evaluated to President Obama for consideration. Only two of those nominees had received the supposedly “required” five votes. Apparently for Sen. Baldwin, the commission's approval is only important when there is a Republican in the White House. As Chairman Grassley pointed out, Judge Brennan was the only candidate reviewed by the commission since President Trump took office who received any bipartisan support.
As Chairman Grassley responded to Senator Sheldon Whitehouse complaining about his doing away with the blue slip policy, he is not doing away with blue slips (starting at 1:53:36). The role of blue slips is the prerogative of the Senate Judiciary Committee Chair, and he is keeping them as a way of ensuring consultation with home state senators by the White House. However, he pointed out that there will be exceptions, such as when the nominee is for a circuit court vacancy, the White House consulted with the home state senators, and a senator has stated politically motivated reasons for not returning the blue slip. Chairman Grassley is not going to allow Democratic senators, determined to cater to their radically liberal base and resist President Trump at every turn, to usurp President Trump's constitutional role of selecting federal judicial nominees.