The “blue slip” got the pink slip last week from Republicans controlling the U.S. Senate when it confirmed Michael Brennan, a Milwaukee attorney and Republican adviser to Gov. Scott Walker, to a lifetime appointment to the powerful 7th Circuit Court of Appeals.
The party-line vote was 49-46.
In doing so, Senate Republicans discarded — for the second time this year — a century-old practice of requiring both home-state senators to assent to a nomination to the nation’s appellate courts by submitting “blue slips” that showed their approval.
Sen. Tammy Baldwin, D-Wis., had opposed Brennan’s nomination; in past years, that would have sunk Brennan’s nomination.
The vote was remarkable because Baldwin’s counterpart, Republican Sen. Ron Johnson, had used that same process to block former President Barack Obama’s appointee to the 7th District Court and Democrats had honored that.
As a result of the political wrangling, the 7th District seat stayed open for seven years.
But Sen. Chuck Grassley of Iowa, the Republican chairman of the Senate Judiciary Committee, changed that by advancing the vote to the Senate, in the process dismissing long-held Senate tradition and the value of consent from both senators from a state.
“The blue slip courtesy is just that — a courtesy,” Grassley said. Sen. Johnson echoed that, saying that past Democratic observance of the blue slip tradition was “kind of silly.”
Perhaps so. Democrats, after all, did something quite similar a few years ago when they were in power, changing the Senate rules to end filibusters for district and circuit court judges and allowing a vote with a simple majority instead of the previously required 60 votes.
At the time, Republican Sen. Mitch McConnell warned Democrats: “You’ll regret this, and you may regret this a lot sooner than you think.”
His words turned out to be quite prophetic. Another warning was issued last week, this one from Democratic Senate Minority Leader Chuck Schumer, New York, who said of the Brennan vote: “I’d admonish my friends on the other side of the aisle, this is a very dangerous road you’re treading. As everyone knows, the winds of political change blow swiftly in America. The minority one day is the majority the next.”
We would count that as one of the rare instances of agreement by Democrats and Republicans in our Senate.
Normally, we would lament the lack of respect for the opposition, for decorum — and for Senate tradition — shown by both parties in these two instances, as they discard civility and long-held practices for the sake of ideological gains and hyperpartisan wins.
Upon further reflection, we have also been dismayed at the delays in filling court appointments because of political wrangling by both parties.
In the Brennan case, Republicans probably win a conservative view of the law on the 7th Circuit for a long time — Brennan’s lifetime.
But in ditching the blue slip protocol, they also diminish the power of the U.S. Senate itself and cede it to the Executive Branch. If the sitting president has a majority control of the Senate, there is no need for the tempering effects of consulting with the opposition party or individual senators from a home state.
Filling court vacancies will be much faster and more efficient.
Already there are signs that this could turn into a two-step process and trickle further down the judiciary system.
Republican Senate Leader Mitch McConnell said last week he will preserve the blue-slip veto process for U.S. District Courts, a lower court in the federal system. But Sen. Johnson has said he is trying to convince McConnell otherwise.
And that may come into play in the Eastern District of Wisconsin, where President Trump has made a nomination for a federal judgeship — and Sen. Baldwin has expressed her opposition.
With the death of the blue slip, the president gains power, the Senate and individual senators lose some — but our court vacancies will be filled more rapidly.
Probably not with as many moderates.