Senate Faces Showdown Over Trump Judges

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Kevin Daley Supreme Court correspondent
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Democratic Sen. Al Franken of Minnesota announced Tuesday that he will oppose the nomination of state Supreme Court Justice David Stras to the 8th U.S. Circuit Court of Appeals, precipitating a confrontation over the last procedural mechanism senators have to stall a judicial nomination.

Stras clerked for Justice Clarence Thomas and taught at the University of Minnesota Law School for six years prior to his elevation to the Minnesota Supreme Court in 2010. President Donald Trump tapped Stras for a seat on the 8th Circuit in May. Stras appeared on Trump’s list of potential Supreme Court nominees during the 2016 presidential campaign, and is widely considered a serious contender for an appointment to the high court during a Republican administration.

Though most of the state’s legal establishment backs his nomination, Franken said Tuesday that Stras is a committed ideologue who would throw the balance of the 8th Circuit further to the right.

“[I]f confirmed to the federal bench, Justice Stras would be a deeply conservative jurist in the mold of Supreme Court Justices Clarence Thomas and Antonin Scalia, justices who the nominee himself has identified as role models,” Franken said in a statement Tuesday.

“The president should be seeking out judges who bridge the issues that divide us, but I fear that Justice Stras’s views and philosophy would lead him to reinforce those divisions and steer the already conservative Eighth Circuit even further to the right,” he added.

Stras received a well-qualified rating from the American Bar Association’s Standing Committee on the Judiciary, which returns assessments on all judicial nominees.

By Senate convention, senators from states where judicial vacancies occur submit an opinion or a “blue slip,” giving a positive or negative evaluation of a nominee named to that vacancy. As a general matter, the Judiciary Committee will not convene a hearing for a nominee until the relevant senators submit their blue slips. Since Stras has been nominated for a seat in Minnesota, Franken’s blue slip is required for a hearing to proceed.

GOP Sen. Chuck Grassley of Iowa, who chairs the Committee, has abided by the blue slip protocol since the new Congress convened in January, though Franken’s decision may force him to do away with the practice. Grassley previously hinted that he would proceed with hearings for nominees to circuit courts, even in the absence of blue slips.

“I think the blue slip is more respected for district court judges historically than it has been for circuit [nominees],” Grassley said in May. “It’s much more a White House decision on circuit judges than the district court judges. This is going to be an individual case-by-case decision, but it leads me to say that there’s going to have to be a less strict use or obligation to the blue slip policy for circuit [nominees], because that’s the way it’s been.”

Minnesota’s other senator, Democratic Sen. Amy Klobuchar, said in a statement Tuesday that she supports holding a hearing for Stras, but urged the president to consider other nominees given Franken’s opposition.

Both Klobuchar and Franken are members of the Senate Judiciary Committee.

Some conservative legal observers argued that Franken’s announcement provides Grassley with sufficient pretext to end the blue slip practice.

“Justice Stras follows the law, he has broad support from across the political spectrum in Minnesota, he was reelected by wide margins, and he even earned the highest rating from the liberal American Bar Association,” said Carrie Severino, chief counsel for the conservative Judicial Crisis Network. “Sen. Grassley has all the evidence he needs that Democrats have abused the blue slip process, and that it is time to move forward despite the obstruction.”

As the blue slip protocol is simply a Senate tradition, albeit a longstanding one, Democrats will have little recourse if Grassley decides to do away with the practice, other than heated rhetoric and the promise of retribution when the chamber eventually reverts to Democratic control.

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