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May 14, 2014 3:37 PM Michael Boggs and Red State Blue Slips

By Ed Kilgore

As you may have heard, Senate Democrats—now including Majority Leader Harry Reid—are bailing on the president’s nominee for a district court position in Georgia, Michael Boggs, a state judge who was once a Blue Doggy Democratic state legislator representing a district in southeast Georgia. Mostly at issue are Boggs’ votes in the Georgia legislature for maintaining Confederate symbols on the state flag, placing restrictions on abortion providers, and enacting a constitutional ban on same-sex marriage (this last position came with some inflammatory conservative rhetoric about “judicial activism” as well. At his confirmation hearings yesterday, Boggs took the standard approach of not talking about his specific positions on specific issues, though he did indicate his support of the abortion restriction bill was the product of ignorance, and admitted his Flagger vote was a nod to his constituents’ convictions.

What I hope angry progressives do understand is that Boggs’ appointment was the product not of the Obama administration’s wishes, but of the system—imposed against significant precedents by Senate Judiciary Committee Chairman Pat Leahy (D-VT)—of requiring positive “blue slips” (basically statements of approval) from both senators in the state where any judicial nominee would serve. Jamelle Bouie has a good backgrounder on the “blue-slip” tradition and its uneven application during recent years:

[I]n its original use, the blue-slip was a simple note on the acceptability of the nominee. But, as traditions are wont to do, its role changed with the circumstances. Under Mississippi Sen. James Eastland, for example, it became a tool for Southern Democrats desperate to keep pro-Brown judges from the courts. Indeed, during Eastland’s tenure as committee chairman any blue-slip in opposition to a nominee was an automatic veto.
After Eastland’s retirement in 1978, subsequent chairs abandoned the practice of an automatic veto, giving weight to the blue-slip “one negative blue-slip would be ‘a significant factor to be weighed,’” said then-Sen. Joe Biden when he led the committee but treating it as a recommendation, not a final judgment. Still, the general practice was that one positive blue-slip was needed for a nominee to move forward.
That changed in 1995 when Republicans took the Senate. Eager to stymie the Clinton administration, Republicans required two blue-slips for a nominee to go forward, which made it easier to kill Clinton’s nominees. With the election of George W. Bush, however, Republicans reverted to the one-slip rule, in order to expedite the process. It flipped again in 2001 after Sen. Jim Jeffords defected from the GOP caucus, giving Democrats control of the Senate, and then again in 2003, when Republicans won the chamber and announced a zero blue-slip rule, allowing hearings on nominees even if there wasn’t a note in favor of the candidate.
It’s in response to this that Leahy restored the two blue-slip rule when Democrats took the Senate in 2006 and he became chairman of the Judiciary Committee. Yes, the single-senator veto slows the pace of nominations, but, he argues, it’s more consistent than the haphazard approach of the past.

Well, Leahy’s approach doesn’t just “slow the pace of nominations;” it gives senators from the party opposing the president extraordinary leverage over judicial nominations. Particularly in a state like Georgia with two Republican senators, package deals are usually necessary that in effect give the opposing party judicial nomination powers. That’s what’s happened here, as Bouie explains:

In return for nominating Judge Julie Carnes to the 11th Circuit Court of Appeals and giving Boggs (and two other Republican-picked attorneys) a place on the Northern District Court of Georgia, Sens. Chambliss and Isakson [agreed to] end a more than two-year hold on Jill Pryor’s nomination to the 11th Circuit.

Now Bouie thinks this is a terrible deal, and perhaps the strategy of Democratic senators is to force the Justice Department and the two Republican senators from Georgia back into negotiations. But it’s a hell of a process, which wouldn’t be necessary without the “blue-slip” system. As regular readers know, I’m not a big fan of Sacred Senate Traditions, and this one definitely needs to go.

If we’re going to have a full-on Democratic Civil War over Boggs, I do hope Leahy gets as much heat over it as Obama.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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