Wednesday morning I once again donned my “Lawyer Extraordinaire” cap and called into to talk with Justice & Drew, this time regarding Senator Al Franken’s announcement that he would not support the appointment of Minnesota Supreme Court Justice David Stras to the Eighth Circuit Court of Appeals and thus would not return his “blue slip.” Click here to listen to that discussion.
The “blue slip” is a device used by the Senate Judiciary Committee to communicate with the home-state Senators about a nomination to the U.S. courts of appeal or district courts, or to be a U.S. marshal or U.S. attorney. When a nominee is referred to the committee, the committee sends a letter (typically on light blue paper) asking the two home-state Senators to take a position on the nomination. The Senators check off the appropriate box on the sheet – either approve or disapprove – and return the paper to the Judiciary Committee.
The blue slip process is used only by the Senate Judiciary Committee – no other Senate committee uses it for other kinds of nominations. The practice of using blue slips dates back to at least 1917.
Following Senator Franken’s announcement that he would oppose Justice Stras’ appointment, Minnesota’s Senior Senator, Amy Klobuchar, issued the following statement regarding Justice Stras’ appointment:
Justice Stras has served on the Minnesota Supreme Court for seven years. While I don’t agree with all of his decisions, I felt it was important to actually look in depth at his record. I learned that for the vast majority of the cases he has respected precedent and sided with the majority, which has included both Democratic- and Republican-appointed judges. He is also supported by former Supreme Court Justice Alan Page. While Justice Stras was not my choice for the 8th Circuit Court, it is my view that he deserves a hearing before the Senate.
I am also concerned that this position could simply go to a less independent judge from another 8th Circuit state (Missouri, Arkansas, Iowa, Nebraska, North Dakota or South Dakota) since this is not a permanent Minnesota position.
I also respect the fact that Senator Franken has an equal role to play here. Under Senate practice, both Senators from a judicial nominee’s home state must allow that nominee to have a hearing. Like Judiciary Chairman Chuck Grassley, I support the practice as it is a check and balance regardless of whether a state is represented by two Democrats, two Republicans or one Democrat and one Republican. The policy has resulted in decision-making for judges across party lines. This policy has held true throughout the entire Obama administration, including when Republicans ran the Senate and when Democrats ran the Senate. Changing this policy would have serious ramifications for judicial nominations in every state in the country. Given this important policy, and given Senator Franken’s view that Justice Stras should not be allowed a hearing in the Senate, the White House will need to provide additional names for the 8th Circuit position.
I have enjoyed getting to know Justice Stras throughout this process and I know he will continue to serve admirably on the Minnesota Supreme Court.
As we discussed on the show, given the extreme partisanship of several current Senators such as Al Franken, who undoubtedly will not agree to any of President Trump’s judicial appointees, I believe it is time for the Senate to abandon the blue slip process. If it does not do so, then the result is that qualified jurists such as Justice Stras (who, it should be noted, has received support for his appointment from jurists from across the spectrum, including retired Minnesota Supreme Court Justice Alan Page) will see their appointment to the Federal bench blocked by people like the dude in the tights in this video:
To hear my prior appearances as the “Lawyer Extraordinaire” on Justice & Drew, click here.