Executive Calendar

Floor Speech

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Mr. GRASSLEY. Madam President, this week the Senate will vote on the nomination of Michael Brennan to serve on the Seventh Circuit Court of Appeals in Milwaukee.

Judge Brennan is a highly qualified nominee with broad, bipartisan support in his own State of Wisconsin. The Senate Judiciary Committee received numerous letters in support of Judge Brennan's nomination, including from the longtime Democratic Milwaukee district attorney. I fully support this nomination.

I have heard from some of my colleagues--and especially from those on the other side of the aisle--that they believe Judge Brennan shouldn't have received a hearing before the Judiciary Committee. They say this because one Senator from Wisconsin didn't return the blue slip. But their opinions are based on an incorrect understanding of the blue slip's history.

As I explained last year several times on the Senate floor and several times in committee, the blue slip courtesy is just that--a courtesy. It has a history going back to 1917. Since then, chairmen of the Judiciary Committee have distributed blue slips to home State Senators to get feedback on the nominees to the Federal bench in their respective States.

Chairmen have applied the blue slip courtesy differently in its 100- year history. For the first 39 years of its existence, the blue slip had no bearing on whether a nominee went through the committee process. Then, in 1956, Senator James Eastland of Mississippi became chairman. He started requiring both home State Senators to return positive blue slips before the committee would ever proceed on a judicial nomination. Scholars maintain that Chairman Eastland adopted this policy to allow southern Senators to veto nominees sympathetic to the Supreme Court decision in Brown v. Board of Education.

Then, when Senator Ted Kennedy took over the chairmanship from Senator Eastland in 1979, he went back to the original blue slip policy.

Then comes along Chairman Strom Thurmond continuing that policy. Then comes along Chairman Joe Biden continuing that policy, and Chairman Orrin Hatch followed that policy. Under the policies of those chairmen just mentioned, negative or unreturned blue slips did not necessarily preclude a hearing for a nominee.

When Senator Leahy became chairman during the Bush administration, he did away with this policy and resurrected Chairman Eastland's strict blue slip policy. The reason for this strict blue slip policy was obvious to everyone at that time--at least obvious to everybody on our side of the aisle--to block President George W. Bush's judicial nominees based on politics and ideology, something that never played much of a role in a lot of these nominations prior to 2002. In sum, only 2 of my 18 predecessors who extended the blue slip courtesy required signoff from both home State Senators.

When Senator Leahy adopted an historical blue slip policy, that was his prerogative as chairman, and nobody argues with that. But it is my prerogative to have the same blue slip policy as Chairman Biden and Chairman Kennedy and the vast majority of predecessors. Accordingly, I have said this: Negative or unreturned blue slips will not necessarily preclude the hearing for circuit court nominees unless the White House failed to consult with home State Senators. I get all sorts of information--and I demand all sorts of information--from the White House on this sort of consultation that is going on. That is why I held hearings for David Stras, Kyle Duncan, Michael Brennan, and Ryan Bounds, despite the lack of two positive blue slips from home State Senators. This policy is completely bipartisan. I have applied it to blue slips of Democratic and Republican Senators.

Some people have suggested that I had a different blue slip policy during the final 2 years of President Obama's administration. They pointed to nine judicial nominees with blue slip problems who didn't receive hearings. But five of these nominees were to district courts, and I have said repeatedly that I am less likely to proceed to district court nominees without two positive blue slips.

With respect to the four circuit court nominees who didn't receive hearings during the last Congress, their nominations simply came too late in the Congress to process. They were nominated during the Presidential election year of 2016, and in Presidential election years, we have the Leahy-Thurmond rule that applies. Under the Leahy-Thurmond rule, the Senate typically stops confirming judges by midsummer. I am assuming that I gave Senators in 2016 the same timeline that I gave to former Senator Franken to return his blue slip for Justice Stras. We wouldn't have started holding hearings then until 2016, and by delaying until that period of time, we would have not had the record number of circuit court judges that we have had during this Presidency, because, then, the Leahy-Thurmond rule would have barred their confirmations. These four nominees also lacked floor support, and it would have been a waste of time and resources if we had proceeded. That was my judgment as chairman.

Chairman Leahy similarly refused to hold hearings for at least six circuit court nominees for reasons besides the blue slips. He denied hearings for three nominees in the Fourth Circuit: Steve Matthews, Robert Conrad, and Glen Conrad. These nominees had two positive blue slips from their home State Senators, and two were nominated more than a year before the 2008 Presidential election, but even then, Chairman Leahy refused to process them.

Chairman Leahy also refused to act on the nomination of Peter Keisler, President Bush's nominee to the DC Circuit, who was nominated in 2006. Obviously, blue slips were not the reason for my predecessor's decision to stall Mr. Keisler's nomination for more than 2 years since the District of Columbia has no Senators. These decisions allowed President Obama then to stack the DC Circuit and also the Fourth Circuit with liberal judges.

Chairman Leahy also declined to hold hearings for two Sixth Circuit Court nominees to Ohio seats, even though both Ohio Senators had returned positive blue slips. The Democratic Senators from Michigan asked Chairman Leahy to halt proceedings on all Sixth Circuit nominees, not just those from Michigan. So Chairman Leahy honored this request and denied a hearing to the Ohio nominees, even though the blue slips had been returned. This was the first time ever a chairman allowed Senators to halt committee proceedings on nominees for seats in other States.

As Chairman Leahy's example shows, there isn't just one reason. There are multiple reasons for any chairman of the Judiciary Committee to deny a hearing to a nominee. Likewise, my decision not to hold hearings for the four nominees in 2016 wasn't based solely on the lack of blue slips. It is simply false, then, for my colleagues to say I changed my blue-slip policy since that particular time.

As to my decision then to hold a hearing on the nominee now before the Senate, Judge Brennan, I was satisfied that the White House adequately consulted with both Wisconsin Senators. The White House sought input from the Wisconsin Senators and considered all the candidates recommended by each Senator. I understand the frustration that Wisconsin's judicial nominating commission hasn't worked out as had been planned by the two Senators, but Judge Brennan was the only candidate to receive bipartisan support from the commission process that is used in Wisconsin. Moreover, the commission's dysfunction can't be used as an excuse to deny the President his constitutional authority to make judicial nominations.

I would also like to point out that each Senator who has withheld a blue slip this Congress also voted to abolish the filibuster for judicial nominations back in 2013. The argument then was that 41 Senators shouldn't be allowed to block the will of a majority of this Senate, but now these same Senators have reversed themselves, saying any one Senator should have that right, through holding a blue slip, to denying the Senate an opportunity to vote.

Understand, just a few years ago, they wanted to abolish 41 Senators holding up a nomination, but today they stand before us and say one Senator ought to be able to do what they said 41 Senators shouldn't be able to do. I will not allow the blue slip to be abused in this way. The blue slip is meant to encourage consultation between the White House and home State Senators. It is not a way for Senators to have veto power over nominees for political or ideological reasons.

Finally, I hear a lot these days about the President stacking the courts or the Senate rubberstamping nominees. Well, I stand by our process. It gives Senators every opportunity to probe deeply into nominees' backgrounds. As five nominees from last year will attest, not everyone makes it through this rigorous scrutiny. I would like to bring attention to two recent Supreme Court decisions that the Trump administration lost.

In Sessions v. Dimaya, the Supreme Court held that the government could not deport an immigrant under a vague statutory provision. The pivotal vote was cast by President Trump's own Supreme Court nominee, Justice Neil Gorsuch.

In another case, Chicago v. Sessions, the Seventh Circuit held that the government could not deny funding to so-called sanctuary cities. It happens the three judges who carried that case were all appointed by Republican Presidents.

I bring up these cases not because I agree or disagree with their outcomes but simply to point out that the fears of the President stacking the judiciary are overblown. Conservative judges apply the law as written, regardless of the results, but I suppose liberals expect their judges to be results-oriented. That is why we can always confidently predict how a liberal judge might rule on a case. Liberal outside groups' real fear, then, is that newly confirmed judges recognize that their role is to neutrally apply the law, not to legislate from the bench.

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