Executive Session

Floor Speech

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Mr. WHITEHOUSE. Madam President, let me just say, as a personal matter, this is the first time I have seen you presiding in the Senate. It is a nice sight, and I welcome you.

I am here today to talk about the eroding and perhaps even vanishing tradition that we refer to in the Senate as the blue slip. People don't necessarily know what a blue slip is, but there has been a tradition with respect to U.S. attorneys, local U.S. district judges, U.S. marshals, and the seats on the U.S. circuit courts of appeals that are by tradition associated with a particular State. With respect to all of those nominations, there has been a tradition that they require the approval of the home State Senators. The mechanism for that approval is called a blue slip, and there actually is a blue slip.

The tradition in the Senate Judiciary Committee that was very rigorously enforced most recently by Chairman Leahy, when he was chairman, is that a nominee for one of those offices does not get a hearing and cannot proceed without the blue slip of the home State Senators. I commend the ranking member on the Judiciary Committee, Senator Dianne Feinstein, on the great work she has done on the minority report she led that describes the history of the blue slip and the extent to which what we are doing today is a break with that tradition.

What provokes this is the nomination of Michael Brennan to proceed without a blue slip having been returned by his home State Senator, Ms. Baldwin. Obviously this signals a disrespect to the local Senators with respect to the office for which they heretofore had a blue slip. It also represents a very significant shift of power in Washington from this body, from this Chamber, to the Oval Office, which is a little bit unusual. Politics come and politics go, but it is rare for a political body like the Senate to willingly and willfully emasculate itself to some degree and transfer all of that power down to the executive branch and to the Oval Office. I think there is a quite significant price to be paid for this choice.

Representing Rhode Island, we are on the First Circuit Court of Appeals. There is one seat--we are not a very big State; we have just one seat--on the U.S. Court of Appeals for the First Circuit, more properly, that is denominated as the Rhode Island seat. It is now occupied by a terrific judge, the Honorable Rogeriee Thompson, whom Senator Reed and I had a very significant role in getting appointed to that position. Should she step down, that vacancy would ordinarily be seen as the Rhode Island seat on the U.S. Court of Appeals for the First Circuit, and we would expect that we would be consulted and that our blue slips would be honored with respect to a nominee the President--whichever President--wished to push through.

Without divulging too many confidences, I will say that there was some considerable back-and-forth with the Obama administration in order for Senator Reed and me to get the assurances we needed that judges we approved of would be appointed.

What I can't figure out is how the tradition of circuit courts of appeals seats having an affiliation with a particular State survives this decision to stop honoring blue slips for circuit courts of appeals. Every single Senator in this Chamber represents a State that lays claim to a certain seat--or a certain number of seats for the big States--on our circuit courts of appeals, but the only thing that undergirds that is the blue slip. The notion that there is a Rhode Island seat on the First Circuit or a Texas seat on the Fifth Circuit or New York seats on the Second Circuit or California seats on the Ninth Circuit or an Alaska seat on the Ninth Circuit doesn't exist in the Constitution. It doesn't exist in law. It exists by virtue of traditions of the Senate, and the only tool that gives that tradition any teeth at all is the blue slip.

So what happens if we, on a categorical basis, decide that circuit court of appeals nominees are no longer subject to the home State blue slip?

(Mr. SULLIVAN assumed the Chair.)

At that point, there is no method for assuring that there is any home State affiliation for that seat whatsoever. A future President could choose to put a New York judge, a Tennessee judge, or an Alaska judge into the so-called Rhode Island seat on the First Circuit. Contrarily, if a so-called Alaska seat on the Ninth Circuit opened up, a future President could put a Rhode Islander into that seat because the only mechanism preventing that from happening is the fact that we honor each other's blue slip. That is the only mechanism that protects this long tradition that the seats on the U.S. circuit courts of appeals are associated with particular home States.

So in this mad rush to get circuit judges confirmed--a rush that has completely overwhelmed this body and that has just completely stampeded the tradition of the blue slip--one of the prices that we will pay is that there is no longer any mechanism to enforce that any seat on any circuit court of appeals in this country has any association with any State.

I have been joined by my distinguished colleague from Massachusetts on the floor. Massachusetts is a bigger State than Rhode Island. Massachusetts has several seats that the Massachusetts delegation would claim as the Massachusetts seats on the First Circuit if and when an opening should occur in those seats. But with no blue slip, how does that stay a Massachusetts seat? How do we have any voice in this whatsoever if there is no blue slip?

We could easily end up in a situation in which all of the circuit courts of appeals have essentially been nationalized. I think there are a great number of lawyers who would more than happily pull up stakes and travel to another location. The distinguished Presiding Officer from Alaska and I have had conversations about the enormous reach of the Ninth Circuit. That already takes quite a lot of traveling. For a lawyer to have the distinction of being able to be a U.S. court of appeals judge--let's say that I have to pull up stakes and move from Texas to Rhode Island--there are plenty of lawyers who would do that.

There is no mechanism to prevent that if we don't honor the blue slip. That entire tradition falls right behind the collapse of the blue slip for the circuit courts of appeals.

Of course, it is a massive transfer of power from this body to the Oval Office, which is obviously fine with our Republican friends now, given the identity of the person who is in the Oval Office, but that is not forever. Changes like this are forever. So we need to think this through.

I will close by saying this. Why is it that we would behave in such a peculiar way with respect to the institution that we love and serve, as to basically disable ourselves with respect to local control over circuit court of appeals nominees and transfer that entire power down to the Oval Office? Why would we do that? That is peculiar behavior.

When you look to the heavens and you see peculiar behavior from heavenly bodies, you look for an explanation. One of the reasons we know that dark stars and black holes exist is because they create peculiar behavior in the heavenly bodies around them. What might be the dark star that is causing the peculiar behavior of the Senate in willfully disabling its own power and authority with respect to nominations for circuit courts of appeals? What could explain the otherwise inexplicable dismantling of our own tradition and our own authority in this area?

I submit that there is a $17.9 million donation that was brought to bear on the nomination of Judge Garland--the obstruction of that nomination--and the subsequent nomination of Judge Gorsuch from one donor. One anonymous donor put nearly $18 million into an effort to manipulate that process. That is not what has gone wrong with the Courts of Appeals, but it is a signal of powerful political interests out there seeking control over judicial nominees. For what other reason would an individual donor anonymously spend nearly $18 million? That is just one donor. There is plenty of anonymous money flowing into operations that seek to get specific types of people into robes.

My concern is that it is the power of special interests that is the dark star that is causing the Senate to undergo this deformation of its traditions--this relinquishment of our individual power as Senators and our group power as a branch of government.

It is special interest power that is driving this. There are special interests, such as the gun lobby, that would like to be able to go into a court and know that they have a judge who is predisposed in their favor. There are special interests, such as anti-choice groups, that would like to go into court and know that they have a judge who is predisposed in their favor. The actual very dark money forces that are meddling in our politics are desperate to show up in court when the question of dark money is litigated and have a judge who they know is predisposed in their favor.

There are business interests that seek to disable, diminish, and hobble courts and juries, and provide people home cooking arbitration alternatives to their constitutional right to go to court and to face a jury of their peers. They are very interested in seeing to it that when they appear in court on those issues, they have a judge who they believe is predisposed in their interests.

I cannot think of another reason why the Senate, as an institution, after all this time, would unilaterally disable itself, would unilaterally emasculate itself with respect to the role of the selection of our circuit court of appeals nominees.

I think this is a day that we will come to regret because that first step to get Judge Brennan confirmed may seem very attractive and appealing to a great many of my colleagues, but once you have crossed that Rubicon with that first step, there is no path that I can see that protects the right of individual Senators to assert an interest in a specific seat or a number of seats on the circuit courts of appeals.

I think we have more or less taken an irrevocable step toward nationalizing the appointments of all circuit court of appeals nominees, and we will look back on this day and say: What fools we were.

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