Note: Please find a memo, fact sheet and op-ed that examine how the blue slip courtesy has been applied by Judiciary Committee chairmen throughout its 100-year history. Here are the highlights:
  • In the last 100 years, only two chairman of the past 18 chairmen (Eastland and Leahy) have adopted policies requiring two positive blue slips as a prerequisite for committee consideration of judicial nominations
  • Previous Republican and Democratic chairmen, including Senators Edward Kennedy and Joe Biden, held hearings on nominees without both blue slips.
  • The blue slip is not enshrined in any Senate or committee rule. Rather, it is a courtesy that has been applied based on the chairman’s prerogative since it was created in 1917. 
Prepared Senate Floor Statement by Senator Chuck Grassley of Iowa
Chairman, Senate Judiciary Committee
On Blue Slips and the nominations of David Stras and Kyle Duncan
November 16, 2017
Mr. President, earlier this week I spoke about the history of the blue-slip courtesy.  And I explained how, in my nearly four decades in the Senate, I regularly returned my blue slip, even when I would have preferred that the President had nominated someone else.
Today, I’m announcing that the Judiciary Committee will hold a hearing for two circuit court nominees, each of whom has one home-state senator who has not returned a blue slip containing a positive endorsement.
The hearing for Justice David Stras, nominee to the Eighth Circuit, and Kyle Duncan, nominee to the Fifth Circuit, will take place on November 29.
Both of these nominees appear to be well-qualified, and they deserve the Judiciary Committee’s further consideration. I’d therefore like to offer an explanation as to why I’m choosing to proceed on these nominations and allow a hearing despite the lack of two positive blue slips.
As I explained earlier this week, the blue slip courtesy is just that—a courtesy. For 100 years, Judiciary Committee chairmen have asked for the views of home-state senators on judicial nominees via the blue slip.
The blue slip is meant to solicit insights into nominees and ensure that the White House is adequately consulting with home-state senators.
Let me be clear: I will maintain the blue slip courtesy.
But some of my Democratic colleagues and left-wing outside groups mistakenly assert that the blue slip affords a home-state senator veto power over a nominee.  That is not true. Only two out of eighteen of the previous Chairmen in the last 100 years allowed a single senator to wield veto power over a nominee.
Senator Joe Biden, when he was Judiciary Committee chairman, articulated a sensible policy with respect to the blue slip. He said that a negative blue slip will be “a significant factor” for the Committee to weigh but that “it will not preclude consideration of a nominee” unless the Administration failed to consult with the senator.
I intend to follow this practice for negative and unreturned blue slips. This practice is consistent with the vast majority of the blue slip’s history.
I’ll add that I’m less likely to proceed on a district court nominee who does not have two positive blue slips from home-state senators. But circuit courts cover multiple states. There’s less reason to defer to the views of a single state’s senator for such nominees.
It’s important to remember that the judicial confirmation process has changed over the last several years. Previously, when home-state senators didn’t return a positive blue slip, their colleagues often defeated the nomination on the Senate floor, not in Committee.
When President Bush nominated Carolyn Kuhl to the Ninth Circuit, her home-state senators didn’t return positive blue slips. Chairman Hatch nevertheless held a hearing and a vote for the nominee. Her home-state senators, however, convinced their colleagues to filibuster the nominee on the Senate floor. Carolyn Kuhl was never confirmed.
But a few years ago, Democrats abolished the filibuster for nominees to the lower courts. They argued that a minority of senators should not be allowed to block nominees who had majority support. Our colleague, the Senator from Oregon, said:
“‘Advice and consent’ was never envisioned as a check that involved a minority of the Senate being able to block a presidential [nomination].”
Well, now that Senator is withholding his blue slip for a nominee to the Ninth Circuit. If he didn’t believe 41 senators should be able to block a nominee, why should a single senator have that right?
The Democrats seriously regret that they abolished the filibuster, as I warned them they would. But they can’t expect to use the blue-slip courtesy in its place. That’s not what the blue slip is meant for.
On the other hand, some have argued that the blue-slip courtesy has no place in modern judicial confirmations. The L.A. Times recently suggested getting rid of the blue slip, as did the New York Times several years ago.
Even our Committee’s Ranking Member, Senator Feinstein, once advocated abolishing the blue slip. I disagree that we should abolish the blue slip.
The blue slip serves the important purpose of encouraging consultation between the White House and the Senate. The White House has an obligation to engage in good-faith consultation with home-state senators. I won’t allow the White House to just steamroll home-state senators. But, as I’ve said all along, I won’t allow the blue slip process to be abused.
I won’t allow senators to prevent a Committee hearing for political or ideological reasons. Using the blue slip for these purposes is not consistent with historical practice.
This brings me to the nomination of Justice David Stras.
Justice Stras appears to be exceptionally well-qualified. Graduating first in his class from the University of Kansas Law School. He clerked for both the Ninth Circuit and the Fourth Circuit, then for Supreme Court Justice Clarence Thomas. After several years in private practice in Minnesota, Justice Stras joined the faculty of the University of Minnesota Law School. He remained there until his appointment to the Minnesota Supreme Court in 2010. In 2012, he was elected to a full six-year term on the Court by 56% of Minnesota voters.
Raised by a single mother in Kansas, Justice Stras is the grandson of Holocaust survivors. He carries the lessons passed down by his grandparents with him each day.
Writing recently about their survival in Auschwitz and immigration to the United States, he recalled that his grandfather had “the uncommon gift of being able to see the light of human generosity in the midst of near-total darkness.”
He wrote that his grandparents embraced “a message of optimism, intended to ensure that their children and grandchildren were able to lead a life free from the atrocities that they had witnessed.”
Justice Stras has an impeccable reputation in the Minnesota legal community. His former colleagues at the University of Minnesota Law School describe him as a person who “engaged in debate respectfully, listening to opposing ideas while backing up his own views with facts and arguments” and who “wanted our students to be exposed to a wide range of beliefs.”
Another group of colleagues from his days in private practice describe Justice Stras as the type of attorney who “never talked down to people” and “there was never any hint that he felt himself superior to anyone.” Instead, Justice Stras “listened to others’ views, and worked to find an approach to legal problems that was both effective and acceptable to everyone on the team.” They also note his dedication to mentoring young lawyers.
Despite these accomplishments and accolades, one Senator has withheld his blue slip. Evidently, my colleague from Minnesota believes that Justice Stras has not even earned a hearing before the Senate Judiciary Committee. But the reasons given for withholding the blue slip are not consistent with the blue slip’s purposes and history.
Justice Stras was nominated to the Eighth Circuit on May 8th, more than six months ago.  After many months, my colleague formally announced that he would not return a blue slip.  He cited Justice Stras’s “deeply conservative judicial philosophy,” as well as his admiration for Justice Thomas and Justice Scalia.
This amounts to an ideological litmus test: admirers of Justice Thomas and Justice Scalia need not apply.
The Minneapolis Star Tribune’s editorial board summed it up. They said the Senator from Minnesota, “rejected Stras for one reason: the justice’s conservative views.” The editorial board of the largest newspaper in Minnesota echoed retired Justice Paul Anderson:
“While Stras is more conservative than I would like, that is not the point. The question is whether Stras is qualified to serve on the Eighth Circuit. And he is.”
My colleague later claimed he was not adequately consulted by the White House, which would be a legitimate reason for withholding a blue slip.  So, I looked into this by reviewing the records of consultation.
It’s clear the White House earnestly and repeatedly attempted to work with both home-state senators. The White House reached out to my colleague from Minnesota several times between January and May of this year to discuss the Eighth Circuit vacancy.
It wasn’t until May 2, that my colleague suggested alternatives to Justice Stras. That was more than three months after initial contact. Nevertheless, the White House considered my colleague’s two suggested nominees.
I am satisfied that the White House adequately tried to consult with both home-state senators. Therefore, I will not deny Justice Stras a hearing.
I would like to say a brief word about Justice Stras’s supposedly rigid conservative views.
The Judiciary Committee has received numerous letters attesting to Justice Stras’s intellectual honesty and open-mindedness. It is clear that he has great respect for the rule of law. And his tenure on the Minnesota Supreme Court demonstrates that—like any good judge—he is able to put aside his personal views and apply the law faithfully.
One letter, written by a bipartisan group of attorneys from Justice Stras’s former firm, noted that they “never doubted for a minute that he reached his decisions based on his well-considered view of the law, and not personal, political, or ideological considerations.”
They went on to note:
“[t]he lawyers whose names appear at the bottom of this letter span the political spectrum, from Democrat to Republican, liberal to conservative. We differ in our political views, but we are united in our support of Justice Stras’s nomination to the Eighth Circuit Court of Appeals.”
A group of former colleagues at the University of Minnesota agree. They wrote a letter to the Committee stating:
“[w]e are Minnesota law professors with diverse political views ranging from very conservative to very progressive. Some of us have appeared before Justice Stras as advocates, and all of us are familiar with his academic and judicial track records. . . . He is no extremist, and he has approached his academic and judicial work without bias or favoritism.
This support is echoed by his colleagues in my state of Iowa.
The Committee has received several letters of support from faculty at the University of Iowa College of Law, where Justice Stras teaches as an adjunct professor. 
Among his supporters are the Dean of the Law School, Gail Agrawal, and Professor Sheldon Kurtz—a self-described “lifelong liberal.”
Justice Stras is a widely respected jurist and he should have a hearing. And ideological differences should not prevent the committee from moving forward.
I would also like to address my decision to hold a hearing for Kyle Duncan, a nominee to the Fifth Circuit. He also has not had two positive blue slips returned.
He is a widely respected appellate lawyer who has litigated over 30 cases in federal and state appellate courts, including in the United States Supreme Court.
My friend and colleague Senator Kennedy of Louisiana has declined to return a positive blue slip.
However, Senator Kennedy expressed that, while he is undecided on Mr. Duncan’s nomination, he does not oppose a hearing for Mr. Duncan.
This is the correct distinction a senator should make when deciding whether to return a blue slip. The blue slip is not meant to signify the senator’s ultimate support or opposition to the nominee. It only expresses the senator’s view about whether the nominee should get a hearing.
Senator Feinstein made this precise distinction in 2003 for Carolyn Kuhl’s nomination. Senator Feinstein returned a blue slip that noted she “reserved judgment” on the nominee. She also supported holding a hearing for Judge Kuhl. Ultimately, after Judge Kuhl’s hearing, Senator Feinstein decided to oppose confirmation.
Evidently, the hearing served a useful purpose. And Senator Feinstein was able to distinguish between allowing a hearing and supporting a nominee. Senator Kennedy has shown that he understands this distinction as well.
I look forward to hearing from Justice Stras and Mr. Duncan at the Senate Judiciary Committee’s hearing on November 29.