When another Senate tradition falls by the wayside one of these days, keep this senator’s statement in mind:
Very interesting statement from Franken on Stras nomination — just won't allow any conservative judges from MN. Th… twitter.com/i/web/status/9…—
Keith E. Whittington (@kewhittington) September 05, 2017
The tradition I have in mind is the “blue slip,” by which senators convey their approval of federal judges nominated in their states. To be sure, Republican senators have blocked appointments before by withholding their blue slip, but then that’s the point of having the practice. As with confirmations, there’d be no need for a process if its intended result were just a rubber stamp.
Comedian-turned-Senator Al Franken, however, has taken the use of the blue slip to what seems to be a new level: He is blocking a nominee he previously described as a “committed public servant” who “cares about the law” because the nominee … well … clerked for a Supreme Court justice, learned from another, and was supported by mainstream conservative groups.
That’s it. Franken makes no claim that the nominee, David Stras, belonged to those groups or made questionable statements about his own judicial philosophy. The only thing Franken’s statement quotes Stras as saying is, “I really grew up with a steady diet of Justice Scalia, and I’m better for it.”
Wait … a judge expressed his admiration for a long-time Supreme Court justice? Well, stop the law review presses!
Never mind that Justice Ruth Bader Ginsburg — whose tutelage Franken presumably would appreciate in a judicial nominee — eulogized Scalia as “a jurist of captivating brilliance and wit” whose dissents had worked to strengthen even her own written opinions.
Worse, Franken cannot summon even a single example of an objectionable ruling by the nominee, David Stras. He merely posits that, because Stras was influenced by Scalia and clerked for Clarence Thomas, he is bound to make objectionable rulings one day.
What’s more, Franken demonstrates a complete lack of understanding of what a judge does, writing: “I had hoped that, in recognition of our different views, President Trump would work with me to identify a consensus candidate — a nominee whose experience demonstrates an ability to set aside rigid beliefs in favor of finding common ground.” But the job of a judge is not to “find common ground.” It’s to interpret the law. Even when it comes to working with their fellow jurists, judges don’t seek “common ground.” (They will sometimes strategically shape the limits of, or reasoning behind, a particular ruling in order to attract other judges to their side for the purpose of forming a majority on a panel, but that’s a matter of tailoring the ruling, not tailoring the law.) Here, Franken is making it plain that he believes upholding the law is secondary to arriving at desired policy outcomes.
Franken also manages to ignore the role he played in ensuring any president wouldn’t have to work with opposition-party senators to find a “consensus candidate”: He joined all but three Democrats is voting for the “nuclear option” to kill the filibuster for all presidential nominees except the Supreme Court. (Stras was nominated to the Eighth U.S. Circuit Court of Appeals.)
That paved the way for Republicans earlier this year to kill the filibuster for Supreme Court nominees, and now one wonders how much longer the blue-slip tradition will last if others join Franken in abusing it in this way.
And that’s the biggest reason this matters to those of us who live well beyond the Eighth Circuit. The blue slip is one of those mechanisms by which the Senate tried to moderate itself and the other, co-equal branches with which it works. With the filibuster’s demise regarding nominations, it’s one of the few remaining. To abuse that mechanism to block a nominee whose lack of moderation is unapparent from his work, but merely inferred from his associations, is to make a mockery of it. And, in all likelihood, to lead to its eventual death as well.