President Trump hopes to have the rest of his first slate of federal appeals court judges seated by June, but his advisers increasingly are worried that Democrats may use an obscure tactic to try to block some of them through what is called a “soft filibuster.”
Senators traditionally are given the courtesy of a say in nominees from their states through a practice known as the “blue slip.” An unreturned blue slip can sink a nomination.
Left without the power to block judges via a floor filibuster, Democrats are trying to figure out how far they can push the blue slip process to block at least some of the president’s conservative legal minds.
“There’s a concern that the Democrats could use the blue slip as a soft filibuster — as a way of basically stopping the nominations process,” a person familiar with the selection process told The Washington Times.
Mr. Trump is pushing to fill some 20 appeals court vacancies that existed when he took office, giving him an extraordinary chance to shape the federal judiciary for the foreseeable future.
Last week, he named five appellate nominees. Judge Amul Thapar, whom he announced earlier this year, is expected to be approved this week by the Senate Judiciary Committee.
But several of those judges are from states with Democratic senators who could withhold the blue slip courtesy and try to block them.
The source told The Washington Times that Trump advisers particularly are concerned about Minnesota Supreme Court Justice David Stas, who was nominated to the 8th U.S. Circuit Court of Appeals, and Michigan Supreme Court Justice Joan Larsen, whom Mr. Trump picked for the 6th Circuit.
Both Minnesota and Michigan have two Democratic senators, and the source said Republicans are particularly watching Sen. Al Franken in Minnesota and Sen. Debbie Stabenow in Michigan.
Mr. Franken did not return a request for comment about how he would use his blue slip. But his fellow home-state senator, Amy Klobuchar, said she plans to review Justice Stras’ record during the confirmation process, according to her office.
Ms. Stabenow hasn’t made a decision on her blue slip and plans to review Justice Larson’s record, as does her colleague Sen. Gary C. Peters, Michigan Democrat.
“As we move forward in the process, I will continue to listen to public input and consult with Michigan’s legal community to ensure that our state is served by highly qualified, fair and impartial judges that put the people of Michigan first,” said Ms. Stabenow.
As a Senate tradition, Republicans are not required to respect the blue slip process. Judiciary Committee Chairman Chuck Grassley, Iowa Republican, has said he generally intends to follow it with respect to Mr. Trump’s lower-court nominees, though he left room open to move appeals court picks even over the objections of home-state senators.
“I think the blue slip is more respected for district court judges historically than it has been for circuit,” Mr. Grassley said in an interview for C-SPAN’s “Newsmakers.” “It’s much more a White House decision on circuit judges than the district court judges.”
In addition to Justices Larsen and Stras, Mr. Trump last week nominated Kentucky lawyer John K. Bash for the 6th Circuit, former Alabama Solicitor General Kevin Newsom for the 11th Circuit and Notre Dame law professor Amy Coney Barrett for the 7th Circuit.
Two of those were on Mr. Trump’s list of 21 potential U.S. Supreme Court picks he released during the presidential campaign. Mr. Trump has elevated Justice Neil M. Gorsuch from that list, and the president told The Washington Times in an interview last month that he will stick with the same list for his future high court picks.
Mr. Trump also could be signaling something with his latest round of appeals court picks.
Leonard Leo, executive vice president of the Federalist Society, which helped craft the list of 21 names, said it’s not unusual for circuit court nominees to be people who the president thinks have the integrity and qualifications to serve on the Supreme Court should a vacancy arise. That goes particularly for the two state justices Mr. Trump wants to install on federal appeals courts.
“I’m not surprised that of the list of 21, the state supreme court justices who were on those lists would be people who would be bumped to federal court of appeals,” Mr. Leo said.
Drew Courtney, vice president for communications at People for the American Way, which ran ads opposing Justice Gorsuch’s nomination, said his organization has concerns about a number of Mr. Trump’s picks for the federal courts and is reviewing their records in depth.
He said Democrats might use the blue slip process to erect blockades.
“We’re asking senators to take a serious look at each of these nominees and make a decision about blue slips on a case-by-case basis,” Mr. Courtney said.
Laurie Kinney, director of communications for the progressive Alliance for Justice, said her group doesn’t think things should even get far enough to worry about blue slips. She said the firing of FBI Director James B. Comey taints the White House so badly that the Senate should halt all judicial confirmation action.
“We called for a pause in all these nomination proceedings while the administration is in the midst of its current turmoil,” she said.
Sen. Dianne Feinstein of California, the Judiciary Committee’s ranking Democrat, waved off questions about how her party will flex the blue slip.
“I’ve heard nothing,” she said.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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