Democrats just got a harsh lesson in what happens if they play nice with Republicans

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

Let me tell you a story about a United States senator who, despite all the warnings that his Republican counterparts would never, ever return the favor, gave many of those Republicans a veto power over President Obama’s judicial nominees.

I bet you’ll never guess what happened next.

This story begins with a judicial vacancy that opened up more than 8 years ago, and that a single Republican senator held open for the bulk of Obama’s presidency. It ended on Thursday, when Donald Trump’s nominee to fill this extended vacancy was confirmed on a party-line vote.

In this story, the role of Charlie Brown is played by Pat Leahy (D-VT), who chaired the Senate Judiciary Committee for most of the Obama presidency. “I have steadfastly protected the rights of the minority,” Leahy proclaimed in 2012, adding that he has “done so despite criticism from Democrats.”

In deference to the Republican minority, Leahy allowed a single senator to veto an Obama judicial nominee from that senator’s home state. As the man empowered to schedule confirmation hearings or halt them before they begin, Leahy “only proceeded with judicial nominations supported by both home state Senators.”

Leahy did so, moreover, even as Republicans took advantage of this courtesy to hold vacancies open indefinitely. Or after they forced a Democratic president to appoint multiple Republicans to the bench as the price of confirming a single Democrat.

And no one played the role of Lucy better than Sen. Ron Johnson (R-WI).

Blue slips

Just days after Johnson took office in 2011, he announced that he would not support Victoria Nourse, Obama’s nominee to a vacant seat on the United States Court of Appeals for the Seventh Circuit. Though Leahy could have scheduled a hearing on Nourse over Johnson’s objection, he refused to do so. After a year of waiting, Nourse eventually asked President Obama to withdraw her nomination.

Then Johnson blocked potential nominees to this seat for three more years. By the time Johnson relented and agreed to let the Judiciary Committee hold a hearing on an Obama nominee to fill this seat, it was 2016 and Republicans controlled the Senate. Obama’s nominee never received a vote on the Senate floor.

The mechanism Johnson used to hold this vacancy open is known as the “blue slip,” a Senate tradition whose significance ebbs and flows depending upon who chairs the Judiciary Committee. Blue slips are literal slips of paper that home-state senators provide to the Judiciary Committee to inform it that the senator supports a particular nominee.

Under Leahy, the Judiciary Committee would not hold a hearing on a nominee unless both of that nominee’s home-state senators returned their blue slip. Most other Judiciary Committee chairs, however, did not afford blue slips such significance.

Sen. Orrin Hatch (R-UT), for example, who chaired the Judiciary Committee for much of the second Bush presidency, determined that “a return of a negative blue slip by one or both home-state Senators does not prevent the committee from moving forward with the nomination — provided that the Administration has engaged in pre-nomination consultation with both of the home-state Senators” Sen. Arlen Specter (R-PA), who chaired the committed for part of the Bush presidency as well, allowed home-state senators to veto trial judges, but not more powerful appellate judges.

Indeed, the only past chair who appears to have applied the same rigid single-senator veto rule as Leahy did was Sen. James Eastland (D-MS), a staunch segregationist who implemented a strict blue slip rule to empower Southern senators to block nominees who supported Brown v. Board of Education.

And lo, friends, in one of the most predictable developments since the sun rose in the east on the day of Trump’s inauguration, the Judiciary Committee’s current chair, Sen. Chuck Grassley (R-IA) has not given Democratic senators the same veto power that Leahy gave Republicans.

Last year, Grassley held a hearing on now-Eighth Circuit Judge David Stras, despite the fact that one of Stras’ home-state senators objected to the nomination. Grassley was similarly dismissive of Sen. Tammy Baldwin’s (D-WI) attempt to block Michael Brennan, Trump’s nominee to fill the Seventh Circuit seat that Johnson held open for so many years.

On Thursday, Brennan’s nomination to a lifetime appointment on the Seventh Circuit was confirmed 49-46, with only Republicans voting in favor.

The Snake

There is a poem Donald Trump is fond of quoting on the campaign trail. In it, a woman discovers a half-frozen snake, invites it into her home, warms it by her hearth, feeds it — and is rewarded for her efforts with a fatal, poisonous snake bite. As the dying woman protests, the snake lays the blame at her feet.

You knew damn well I was a snake,” the serpent tells her, “before you took me in.”

Democrats knew damn well who Ron Johnson was when he blocked Nourse’s nomination. And they knew damn well how a Republican Judiciary chair was likely to treat Democratic blue slips, because Orrin Hatch showed them during the Bush administration.

On Thursday, the same day Brennan was confirmed, the Senate Judiciary Committee’s Democrats released a long report describing how “how President Trump and Republicans are working to stack the federal judiciary, particularly circuit courts.”

Many of their grievances are legitimate. After Republicans took over the Senate in 2015, they ground judicial confirmations to a near stand-still, hoping that these vacancies would eventually be filled by a Republican president. Trump’s nominees are deeply ideological — even more so than most of President George W. Bush’s judges. And Trump’s nominees are almost-entirely white and overwhelmingly male.

But Democrats have no standing to complain about the blue slip. The fact that Michael Brennan is now a judge is on them.

They knew Chuck Grassley was a snake when they let him in.

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Reposted from Think Progress

Ian Millhiser is a Senior Constitutional Policy Analyst at the Center for American Progress Action Fund and the Editor of ThinkProgress Justice. He received a B.A. in Philosophy from Kenyon College and a J.D., magna cum laude, from Duke University. Ian clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit, and has worked as an attorney with the National Senior Citizens Law Center’s Federal Rights Project, as Assistant Director for Communications with the American Constitution Society, and as a Teach For America teacher in the Mississippi Delta. His writings have appeared in a diversity of legal and mainstream publications, including the New York Times, The Los Angeles Times, U.S. News and World Report, Slate, the Guardian, the American Prospect, the Yale Law and Policy Review and the Duke Law Journal; and he has been a guest on CNN, MSNBC, Al Jazeera English, Fox News and many radio shows.

Posted In: Allied Approaches

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