In a rare political volley in the judicial wars, a trio of outside Democratic-aligned groups is going after members of its own party in a newly launched ad campaign.
The campaign, spearheaded by the new outfit Demand Justice, demands that Democratic senators commit to voting en masse against any of Donald Trump’s judicial nominees should Senate Republicans advance one without the formal sign-off of his or her home-state senator.
Such a sign-off is known, in congressional parlance, as the blue slip. Though it was always an informal courtesy, for decades it was treated as a procedural backstop for the confirmation of federal judges. But this past October, Senate Majority Leader Mitch McConnell (R-KY), with his eyes on stacking the judiciary with conservative justices, announced his intention to dispense with the concept. A month later, Senate Judiciary Committee Chairman Chuck Grassley (R-IA) followed suit.
Because of Sen. Al Franken’s abrupt resignation, the Senate in full has never formally voted on a nominee who made it through the committee without a blue slip (the Minnesota Democrat was gone by the time David Stras was confirmed to the Eighth Circuit Court of Appeals). But such a scenario is likely to present itself his week, when the Senate is expected to consider the nomination of Michael Brennan, a Milwaukee lawyer, to serve on the Seventh Circuit Court of Appeals.
Brennan does not have a blue slip from one of his home-state senators, Tammy Baldwin. But what’s further enraged Democrats is the history of the post he is set to occupy. For years, that seat on the Seventh Circuit was held open because Wisconsin’s other senator, Republican Ron Johnson, refused to return his own blue slip for President Barack Obama’s nominee, Victoria Nourse. Brennan himself was quoted as applauding the resulting vacancy.
“[T]here are now two senators from Wisconsin from different political parties,” he wrote, “so to exclude Johnson and those citizens who voted for him would be a purely partisan move.”
In the newly launched ad campaign, Demand Justice—along with progressive-minded groups People for the American Way and Leadership Conference and Alliance for Justice—paints the Brennan vote as a Rubicon moment for the chamber and Democrats in particular.
“We need you to tell Democratic senators this is not business as usual,” the ad reads. “If Brennan is confirmed, all Democrats must commit that they will not vote for any more of Trump’s judicial nominees, full stop.”
The advertisement is digital-only and designed, in part, to juice the number of email addresses the groups can collect for future calls-to-action. But according to a Demand Justice spokesman, there will be “five-figures” behind the push.
So far, Senate Democratic aides say there has not been talk of getting a commitment within the party to vote against any Donald Trump nominee—or, even, any nominee who does not have a blue slip—should Senate Republicans reject the blue-slip process. But that’s partially the purpose of the ad campaign: to up the pressure for such talks to begin.
And there is some urgency, Demand Justice argues. In addition to Brennan, the Senate Judiciary Committee is set to hold a hearing for Ryan Bounds’ nomination to serve on the Ninth Circuit Court of Appeals. A federal prosecutor for the U.S. District Court for the District of Oregon, Bounds does not have a blue slip from either of his home-state senators—Ron Wyden or Jeff Merkley.
But the bigger battle looms on the horizon, with three seats for the liberal-leaning Ninth Circuit that would, traditionally, require the sign-offs of California’s senators (both Democrats).
“If one senator can be overruled, all Democratic home-state senators can be. And Trump will be able to move our courts even further to the extreme right,” the Demand Justice ad reads. “Already, Republicans are starting to push through a Trump pick from Oregon who is opposed by both of his home state senators and after that, Trump could steamroll Dianne Feinstein and Kamala Harris on a group of judge picks from California.”