Stuart Kyle Duncan testifies during his confirmation hearing before the Senate Judiciary Committee to be U.S. circuit judge for the Fifth Circuit, on Nov. 29, 2017. Photo: Diego M. Radzinschi/ALM.

Members of the Senate Judiciary Committee spent a chunk of their hearing on nominees for federal appeals courts Wednesday bickering over how big a role home-state senators should play in the nomination process.

The hearing, on the nominations of former Louisiana Solicitor General Kyle Duncan for the U.S. Court of Appeals for the Fifth Circuit and Minnesota Supreme Court Justice David Stras to the Eighth Circuit, was held even though Sen. Al Franken, D-Minnesota, did not return a so-called “blue slip” for Stras’ nomination. Throughout the hearing, senators repeatedly criticized the opposite party, the White House and its counsel, Don McGahn, for the way the nomination process has proceeded since President Donald Trump took office.

David Stras.

“As each member of the Senate recognizes, the states we represent are diverse,” said Sen. Dianne Feinstein, D-California. “The blue slip was instituted to ensure that those nominated for lifetime appointments reflect our home state’s particular needs, as well as the legal bar in our communities. What’s more, the blue slip encourages meaningful collaboration and consultation between the White House and a state’s senators.”  

Feinstein, the ranking member on the committee, said Republican senators wrote a letter at the beginning of the Obama administration saying they would not support nominees for their states if they were not consulted.

“The only difference between then and now is who sits in the White House,” Feinstein said.

But the committee chairman, Sen. Chuck Grassley, R-Iowa, pushed back on allegations of hypocrisy. He said Democrats were unfairly distorting his approach to blue slips and his decision to hold the hearing.

“Some of my colleagues and liberal outside groups have accused me of abolishing the 100-year-old blue slip tradition. That’s simply not true,” Grassley said. “I’m choosing to apply the blue slip policy that most of my predecessors had for the vast majority of this 100-year history. My critics seem to believe the blue slip’s history started with Sen. Leahy 16 years ago. But, as I’ve explained, history is longer than that.”

Typically, the two senators for a nominee’s home state return slips giving their approval. Under some former committee chairmen, a hearing for the nominee was not held unless both senators approved. Conservatives have pressed Grassley for months to do away with that process, arguing Democrats abuse it to obstruct or slow the confirmation of President Donald Trump’s judicial nominees.

Grassley announced roughly two weeks ago that he would hold the hearing for Stras and Duncan even though Franken and Sen. John Kennedy, R-Louisiana, had not returned their slips. Kennedy has since turned in his slip for Duncan, though he’s still unsure if he will support him.

As chairman of the committee from 2007 to 2015, Sen. Patrick Leahy, D-Vermont, would not hold hearings unless both slips were returned. But Democratic chairmen before Leahy, including then-Sen. Joe Biden, did hold hearings regardless of blue slips.

During the hearing, Franken defended his decision not to return the slip for Stras, which he said had nothing to do with Stras or his qualifications.

“The blue slip exists for a reason,” Franken said. “Under both Republican and Democratic chairmen, this committee has deferred to home-state senators when considering judicial nominees because senators of both parties recognize that the blue slip plays a critical role in ensuring collaboration between the Senate and the White House.”

Franken said that in the case of Stras, there was no “consultation” with him on the part of the White House.

Even Kennedy, a Republican, appeared concerned by the process. Kennedy said Duncan’s committee questionnaire falsely said Kennedy and Sen. Bill Cassidy, R-Louisiana, gave the White House Duncan’s name as a potential nominee.

“At least from my point of view, that is not accurate,” Kennedy said. “I first learned about Mr. Duncan’s nomination when I received … a series of phone calls from Mr. Don McGahn, who is White House counsel. Mr. McGahn was very firm that Mr. Duncan would be the nominee, to the point that he was on the scarce side in one conversation of being polite.”

Kennedy said McGahn later apologized, “but his firmness he did not relent on.” Kennedy said there’s much he likes about Duncan, including that he’s “pro-life” and “pro-religious liberty.”

But Kennedy said he has reservations about Duncan filling a so-called Louisiana seat on the Fifth Circuit because he is a “Washington lawyer.” Duncan was born and raised in Louisiana, and attended undergraduate and law school at Louisiana State University.

“I have received scores of phone calls from experienced, accomplished, whip-smart, pro-life, pro-religious liberty Louisiana lawyers and judges … who have asked me why I would support a Washington lawyer for this seat over them,” Kennedy said. “One of those applicants asked me directly, ‘What am I? Chopped liver?’ So I’ve got to answer this question.”

The committee will likely hold a vote on Duncan and Stras in the next week or so, followed by full consideration by the Senate.

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