WASHINGTON – Sen. Bob Casey has cleared the way for a Trump nominee to take a seat on a key federal court — a nod to bipartisanship as tensions have again risen in the toxic fights over judicial nominees.
The Pennsylvania Democrat recently gave a green light for the Senate to go ahead with a hearing to consider Stephanos Bibas, a Penn law professor whom President Trump nominated in June to the U.S. Court of Appeals for the Third Circuit. Bibas has a hearing before the Senate Judiciary Committee scheduled for Wednesday, which will likely open the door for full Senate confirmation.
In doing so, Casey became the sixth Democrat to return a “blue slip” on a Trump judicial nominee – a signed paper that, by Senate tradition, is required from both home-state senators for nominees to advance. The custom gives senators in the political minority some leverage over lifetime appointments that can shape federal law for years.
On the 2011 “blue slip” above, Sen. Bob Menendez (D.,N.J.) indicates his support of a federal judicial nominee from his state. The blue-slip custom allows senators to block nominees they find objectionable. (U.S. Senate)
The Third Circuit covers Pennsylvania, New Jersey, Delaware, and the Virgin Islands.
Republicans have made noises about ending the blue-slip tradition, angered that some of President Trump’s nominees haven’t moved faster — though they used the same process to slow many of President Barack Obama’s judicial picks.
Casey still plans to wield the blue-slip power. He has told the White House that he will withhold his signature on the slip to effectively block David Porter if the conservative lawyer is nominated for a judicial post, according to a person familiar with Casey’s actions. Porter was under consideration in 2014, but his candidacy was scuttled after an outcry from liberal groups.
The maneuvering is part of the decades-long partisan wars over judges, and supporters say the blue-slip custom is designed to help block extreme nominees by giving the party out of power some say in the nominating process.
“What this shows is when the White House and Republicans cooperate with Democrats, things can happen,” said Carl Tobias, a law professor at the University of Richmond who tracks judicial nominations.
Over recent years both parties have used the Senate’s procedural rules to grab power over judicial slots.
Under Obama, Democrats accused Republicans of holding back blue slips and slowing judicial nominations. Pennsylvania’s GOP Sen. Pat Toomey openly blocked Rebecca Ross Haywood, who was nominated last year to the same seat that could now be filled by Bibas.
Most prominently, many Democrats remain outraged by how Republicans blocked Obama Supreme Court nominee Merrick Garland.
Tobias said complaints about the problem under Trump have been exaggerated: Just two of the president’s nominees are awaiting blue slips from Democrats, he said. They are in Minnesota and Oregon, where senators say they weren’t consulted by the White House.
But many more openings remain in states where Democrats have a senator and, therefore, veto power — if the tradition continues.
If not, lawmakers in the minority (like Casey now) might lose the power to block nominees they consider unacceptable. This could open the door for each party to nominate more ideological choices because they wouldn’t need cooperation from the other side.