The Al Franken Standard

The GOP can overrule Democratic abuse of the Senate judicial ‘blue slip.’


Sen. Al Franken on Capitol Hill, July 11. 
Sen. Al Franken on Capitol Hill, July 11.  PHOTO: ALEX EDELMAN/ZUMA PRESS

Democrats continue to obstruct President Trump’s nominees by every petty means possible, from procedural tricks to anti-Catholic smears (see our editorial, “Democrats and ‘Dogma,’” last week). So now might be the moment for Judiciary Chairman Chuck Grassley to show Democrats that there are limits to their abuse of Senate rules.

Minnesota Democrat Al Franken unleashed the latest ploy last week, announcing that he will refuse to return his “blue slip” on the nomination of Minnesota Supreme Court Justice David Stras to the Eighth Circuit Court of Appeals. Blue slips are a bipartisan tradition whereby Senators can block votes on nominees to the lower federal courts from their home states. Mr. Franken wants to turn this courtesy into a pocket progressive veto of Trump nominees.

The Senate comedian is also aiming to establish a new standard for what counts as disqualifying for the judiciary. Judge Stras is held in high esteem across Minnesota legal circles, has earned the highest rating from the liberal American Bar Association, and was elected with greater margins to his court seat than was Mr. Franken to the Senate. Judge Stras was on Mr. Trump’s short list for the Supreme Court, and even Mr. Franken’s minions have been unable to gin up a flaw in his legal record. 

Mr. Franken claims instead that Judge Stras is unfit by virtue of his role models. The Senator is offended that the judge early in his career “worked as a law clerk for Justice [ Clarence ] Thomas,” and that he even once described that Supreme Court Justice as a “mentor.” Judge Stras also dared to speak at a Federalist Society event, where he “talked about how the jurisprudence of Justice [Antonin] Scalia helped to shape his own views.” Shocking stuff.

Under this Franken Role Model Standard, Democrats are justified in opposing any nominee who admires any widely esteemed Senate-confirmed Supreme Court Justice that he doesn’t like. Perhaps he thinks the late Justice Scalia wrote too well and was too intelligent to be Mr. Franken’s idea of a judicial model.

Blue slips were once reserved for nominees with ethical baggage, but Mr. Franken wants to use them for the crime of admiring the wrong people. Mr. Trump was elected in part on an explicit promise to appoint judges in the mold of Antonin Scalia, so the Franken standard pre-emptively disqualifies any Trump nominee.

Chairman Grassley needn’t stand for such nonsense. The blue slip has been around since 1917, but only a few Judiciary Chairmen have chosen to treat it as an absolute veto. Democratic Senator Ted Kennedy gave home state senators a “reasonable” deadline to return slips, and then put it to a committee vote on whether to proceed if they weren’t returned. Democrat Joe Biden reserved the right to ignore blue slips so long as an Administration consulted with home state Senators. Republican Strom Thurmond gave Members a mere seven days to return slips, then sometimes voted on nominees even over blue-slip objections.

Mr. Grassley has authority under Senate rules to suspend the blue-slip tradition on a case-by-case basis, and Mr. Franken’s abuse deserves to become his first example. The Iowan would also be justified in setting a time limit for returning a slip, since Mr. Franken also exploited the tradition by dragging out his decision on the Stras blue slip for months.

Democrats blew up the filibuster for judicial nominees in 2013 to pack the D.C. Circuit, and it boomeranged on them with the confirmation of Neil Gorsuch to the Supreme Court. That might make them desperate, but it doesn’t give them the right to block a President’s nominees merely because a left-wing Senator thinks someone admires the wrong Justices.

Appeared in the September 13, 2017, print edition.

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