The Constitution assigns to the Senate a separate and independent role from the president for lifetime appointments to the federal judiciary. The first prong of the Senate’s role is to provide advice and the second is to determine whether to consent to a nominee’s confirmation.  The blue slip is a piece of paper that reflects the important role that home state senators have played for the last century in providing advice to presidents about lifetime appointments in their state.  If the chairman of the Senate Judiciary Committee allows judicial nominees to advance without receiving the blue slips from the home state senators, no president will be compelled to listen to the advice of home state senators.  A recent Congressional Research Service report identified only three judicial nominees since 1917 who have been confirmed over blue slip objections.[1]  The blue slip practice is one of the constitutional checks and balances that helps maintain equilibrium among the branches of government.  Over the years, when the Senate majority placed partisan loyalty to the president over the Senate’s institutional interests in independently carrying out its constitutional responsibilities, the blue slip served as a vital corrective.  This institutional check has arguably never been more important than now, with a president who acts with contempt for the rule of law, who undermines the legitimacy of judges who disagree with his actions, and who prioritizes personal loyalty to him over fealty to the law.

In the case of David Stras, who has served as a justice on the Minnesota Supreme Court since 2010, Minnesota Senator Franken has announced he will oppose Justice Stras and will not return the blue slip.[2]  The Trump administration did not engage in meaningful consultation with the Minnesota senators, a clear departure from how previous presidents from both parties have acted.  This lack of consultation is particularly egregious in light of the fact that the Minnesota senators are both members of the Senate Judiciary Committee, and such members have historically received even greater deference from the White House than other senators.[3]

Chairman Grassley’s decision to nonetheless proceed with a hearing on the Stras nomination is his latest – and most severe – abuse of the judicial confirmation process.  No one should forget what Chairman Grassley promised just two years ago, during the presidency of Barack Obama:


For nearly a century, the chairman of the Senate Judiciary Committee has brought nominees up for committee consideration only after both home-state senators have signed and returned what’s known as a “blue slip.”  This tradition is designed to encourage outstanding nominees and consensus between the White House and home-state senators. Over the years, Judiciary Committee chairs of both parties have upheld a blue-slip process, including Sen. Patrick Leahy of Vermont, my immediate predecessor in chairing the committee, who steadfastly honored the tradition even as some in his own party called for its demise. I appreciate the value of the blue-slip process and also intend to honor it.[4]

Chairman Grassley’s strict observance of the blue slip tradition led to the denial of hearings and votes for 18 Obama judicial nominees.[5]  But now that President Trump is making judicial nominations rather than President Obama, Chairman Grassley has abandoned his own promise and a century of Senate tradition in order to rush through Trump’s far-right judicial nominees.  Chairman Grassley’s about-face should be condemned by senators of both parties because it will strip senators of their constitutional role of providing advice and consent for judicial appointments in their states.  As Senator Hatch astutely observed in 2014: “Weakening or eliminating the blue slip process would sweep aside the last remaining check on the president’s judicial appointment power.  Anyone serious about the Senate’s ‘advice and consent’ role knows how disastrous such a move would be.”[6]  When the American people next elect a Democratic president and Senate, Senator Grassley and Republican senators who support his ending of this Senate practice will rue the day they voted for judicial nominees over the objection of the home state senators.




The scheduling of a hearing for Mr. Brennan over the objection of home-state senator Tammy Baldwin is the latest example of Senator Grassley’s deeply troubling disregard of Senatorial courtesy and Senate tradition.[1]  Senator Baldwin has not returned her blue slip for Mr. Brennan, so he should not be granted a hearing.  This is now the second time during the Trump presidency that Chairman Grassley has abused the blue slip tradition in order to help President Trump attempt to install a conservative ideologue over the objection of a Democratic senator.  When he was chair of the Senate Judiciary Committee during the Obama presidency, Chairman Grassley did not grant a hearing to any nominee unless they had blue slips from both home-state senators.



Chairman Grassley continues to abuse another Senate tradition by scheduling hearings with multiple circuit court nominees.  The tradition of having just one circuit court nominee per hearing exists because circuit courts are the second highest courts in the land, and they make critical decisions involving multiple states and tens of millions of people.  Each such nominee is deserving of the Senate Judiciary Committee’s time, attention, and thorough examination. During the eight years of the Obama presidency, only three hearings featuring two circuit court nominees took place – out of 94 judicial nominations hearings – and Republican senators agreed to each of them.  In just the first year of the Trump presidency, Chairman Grassley has jammed two circuit court nominees into four out of the 11 judicial nominations hearings – over 36 percent of the time – despite Democratic objections.  Chairman Grassley has steamrolled President Trump’s judicial nominees through the committee and deprived the committee adequate time and resources to properly assess each lifetime nominee.  This rushed process has already led to an embarrassing trend of previously undisclosed information coming to light after nominees have been reported from committee.



Wisconsin has for decades maintained a sound system for taking at least some of the politics out of the federal judicial-selection process.

Back in the late 1970s, the state’s U.S. senators established a process for reviewing potential nominees for federal judgeships. It was designed to ensure that federal jurists serving Wisconsin would be experienced, fair-minded and respectful of the state’s historic commitment to judicial independence and integrity.

At the heart of the process was the state’s bipartisan six-member Federal (Judicial) Nominating Commission. The state’s two U.S. senators would each select three commissioners and the six-member commission was then charged with soliciting applications to fill judicial vacancies, reviewing those applications and making recommendations of qualified candidates to fill those vacancies. The senators would then work with the White House and their colleagues to secure the nomination and the confirmation of able federal judges.

The Wisconsin standard, spelled out in the commission’s charter, said an applicant needed the support of at least five commissioners to be recommended. That was a high threshold. But there was a point to it. “To ensure that the senators would nominate qualified judges rather than candidates who were on either extreme,” Republican Sen. Ron Johnson explained several years ago, “the senators each selected three commissioners and required that any candidate recommended to the senators have the support of at least five commissioners.”

Unfortunately, Johnson has now shredded the standard he once celebrated.


Johnson sacrificed Wisconsin’s high standard on the altar of political expediency — doing the bidding of Trump rather than his constituents.




(Reuters) - In an executive order issued Tuesday, the Trump administration abruptly ended the longtime bureaucratic process by which federal agencies select administrative law judges – the judicial officers who preside over millions of administrative proceedings a year, from the smallest of Social Security claims to multimillion-dollar enforcement cases.

ALJ candidates have long been screened by the Office of Personnel Management, a neutral civil service agency that evaluated applicants based on fixed criteria, including performance on a civil service exam. Under the Trump executive order, federal agencies can bypass the OPM and make their own hiring decisions. The executive order said the change will give agency heads more freedom, flexibility and responsibility to hire ALJs without compromising the judges’ independence.

Skeptics aren’t so sure. Two administrative law experts told me Wednesday that the order will allow the Trump administration to reshape administrative courts to reflect its policies – and could presage even more aggressive attempts to get rid of ALJs who don’t toe the line.

“I’m growing more concerned,” said University of Georgia law professor Kent Barnett. “This feels like a movement to burn down the entire administrative state.”


Who paid off Brett Kavanaugh’s $92,000 country club fees plus his $200,000 credit card debt plus his $1.2 million mortgage, and purchased themselves a SCOTUS seat?




Ginni Thomas: Supreme Court justice's wife leading right-wing effort to purge officials 'disloyal' to Trump

(Yahoo News) - A group of pro-Trump activists led by Ginni Thomas [wife of Supreme Court Justice Clarence Thomas] has reportedly compiled lists of “disloyal” government officials it wants sacked.



Citing a source close to her, US news website Axios reports that Ms Thomas has passed the group’s recommendations on to Donald Trump.

One of the memos written by a Groundswell member was on former District of Columbia US Attorney Jessie Liu, who had her nomination for a top role in the Treasury withdrawn by the president earlier this month.

A source familiar with the document told Axios that Ms Liu’s alleged misdeeds included not charging Andrew McCabe, the former deputy director of the FBI, and signing a document asking for jail time for Michael Flynn, Mr Trump’s former national security adviser.



California Senators Dianne Feinstein (D) and Kamala Harris (D) expressed opposition to the nomination of Collins and 9th Circuit nominees Patrick Bumatay and Kenneth Kiyul Lee. Feinstein and Harris, who both served on the Senate Judiciary Committee in 2018, said the White House announced the three nominations to the Ninth Circuit Court of Appeals without consulting them.[13]

Feinstein said in a statement:

“I repeatedly told the White House I wanted to reach an agreement on a package of 9th Circuit nominees, but last night the White House moved forward without consulting me, picking controversial candidates from its initial list and another individual with no judicial experience who had not previously been suggested.[14]

She said she and Harris "strongly opposed Daniel Collins." She also said she told White House Counsel Don McGahn that Lee "failed to disclose to our judicial selection committees controversial writings on voting rights and affirmative action."[15]

Lily Adams, Harris' communications director, said,[16]

Instead of working with our office to identify consensus nominees for the 9th Circuit, the White House continues to try to pack the courts with partisan judges who will blindly support the President’s agenda, instead of acting as an independent check on this Administration.[14]



McConnell Has a Request for Veteran Federal Judges: Please Quit

The Senate majority leader has encouraged judges thinking about stepping down to do so soon to ensure that Republicans confirm their replacements this year.

WASHINGTON — Running out of federal court vacancies to fill, Senate Republicans have been quietly making overtures to sitting Republican-nominated judges who are eligible to retire to urge them to step aside so they can be replaced while the party still holds the Senate and the White House.

Senator Mitch McConnell, Republican of Kentucky, who has used his position as majority leader to build a judicial confirmation juggernaut for President Trump over the past three years, has been personally reaching out to judges to sound them out on their plans and assure them that they would have a worthy successor if they gave up their seats soon, according to multiple people with knowledge of his actions.

It was not known how many judges were contacted or which of them Mr. McConnell had spoken to directly. One of his Republican colleagues said others had also initiated outreach in an effort to heighten awareness among judges nominated by Presidents Ronald Reagan, George Bush and George W. Bush that making the change now would be advantageous.



Senate Majority Leader Mitch McConnell (R-KY) could soon find himself under investigation for improperly pressuring a judge to retire so he could fill the opening with a 37-year-old protégé.




Legal experts perplexed why Trump-appointed judge who donated to Trump’s campaign refuses to rule on Trump tax case

Legal experts are scratching their heads after a federal judge appointed by President Donald Trump announced on Tuesday he is delaying handing down his decision in a Trump tax returns case until other federal judges hand down their decisions in other Trump cases. That judge is a former Trump transition team volunteer and has donated to the Trump campaign.

District Judge Trevor McFadden of the U.S. District Court for the District of Columbia announced he will hold up his ruling in a case brought by the House Ways and Means Committee against the U.S. Treasury Dept. The case involves gaining access to six years of Trump’s tax returns. The law clearly says the IRS “shall” hand them over to Congress. The Trump administration says Congress has no right to investigate.

Back in August Judge McFadden pushed back against House Democrats, denying “their request to both expedite consideration of the case and to decide on its merits without holding a trial,” Politico had reported.


Law.com Senior editor Mike Scarcella offers this insight into why McFadden possibly might be staying his ruling: the judge “served as an unpaid volunteer on Trump’s presidential transition team.”



The Chief Justice of the United States

One First Street, N.E.

Washington, D.C. 20543

March 11, 2020

Dear Chief Justice Roberts:

I hereby resign my membership in the Supreme Court Bar.

This was not an easy decision. I have been a member of the Supreme Court Bar since 1972, far longer than you have, and appeared before the Court, both in person and on briefs, on several occasions as Deputy and First Deputy Attorney General of Hawaii before being appointed as a Hawaii District Court judge in 1986. I have a high regard for the work of the Federal Judiciary and taught the Federal Courts course at the University of Hawaii Richardson School of Law for a decade in the 1980s and 1990s. This due regard spanned the tenures of Chief Justices Warren, Burger, and Rehnquist before your appointment and confirmation in 2005. I have not always agreed with the Court’s decisions, but until recently I have generally seen them as products of mainstream legal reasoning, whether liberal or conservative. The legal conservatism I have respected– that of, for example, Justice Lewis Powell, Alexander Bickel or Paul Bator– at a minimum enshrined the idea of stare decisis and eschewed the idea of radical change in legal doctrine for political ends.

I can no longer say that with any confidence. You are doing far more— and far worse– than “calling balls and strikes.” You are allowing the Court to become an “errand boy” for an administration that has little respect for the rule of law.

The Court, under your leadership and with your votes, has wantonly flouted established precedent. Your “conservative” majority has cynically undermined basic freedoms by hypocritically weaponizing others. The ideas of free speech and religious liberty have been transmogrified to allow officially sanctioned bigotry and discrimination, as well as to elevate the grossest forms of political bribery beyond the ability of the federal government or states to rationally regulate it. More than a score of decisions during your tenure have overturned established precedents—some more than forty years old– and you voted with the majority in most. There is nothing “conservative” about this trend. This is radical “legal activism” at its worst.

Without trying to write a law review article, I believe that the Court majority, under your leadership, has become little more than a result-oriented extension of the right wing of the Republican Party, as vetted by the Federalist Society. Yes, politics has always been a factor in the Court’s history, but not to today’s extent. Even routine rules of statutory construction get subverted or ignored to achieve transparently political goals. The rationales of “textualism” and “originalism” are mere fig leaves masking right wing political goals; sheer casuistry.

Your public pronouncements suggest that you seem concerned about the legitimacy of the Court in today’s polarized environment. We all should be. Yet your actions, despite a few bromides about objectivity, say otherwise.

It is clear to me that your Court is willfully hurtling back to the cruel days of Lochner and even Plessy. The only constitutional freedoms ultimately recognized may soon be limited to those useful to wealthy, Republican, White, straight, Christian, and armed males— and the corporations they control. This is wrong. Period. This is not America.

I predict that your legacy will ultimately be as diminished as that of Chief Justice Melville Fuller, who presided over both Plessy and Lochner. It still could become that of his revered fellow Justice John Harlan the elder, an honest conservative, but I doubt that it will. Feel free to prove me wrong.

The Supreme Court of the United States is respected when it wields authority and not mere power. As has often been said, you are infallible because you are final, but not the other way around.

I no longer have respect for you or your majority, and I have little hope for change. I can’t vote you out of office because you have life tenure, but I can withdraw whatever insignificant support my Bar membership might seem to provide.

Please remove my name from the rolls.

With deepest regret,

James Dannenberg




WASHINGTON – Democrats accused Republicans on Tuesday of taking their cues from Donald Trump after the Senate’s No. 2 Republican said President Barack Obama’s nominee to the Supreme Court should expect to be treated like a “pinata.” 


Senate Democratic Leader Harry Reid said Republicans were “acting like big, tough people threatening to destroy the reputation of a Supreme Court nominee they haven’t even met yet.






CNN reports:

A top adviser and lawyer for President Donald Trump’s re-election campaign has a history of pushing anti-gay positions, including linking the legalization of same-sex marriage to bestiality and pedophilia. Jenna Ellis, an attorney who previously served as the director of public policy at the socially conservative James Dobson Family Institute, has also repeatedly attacked the Supreme Court’s 2003 decision in Lawrence v. Texas, which overturned state laws that criminalized homosexual activity.


Ellis said the Supreme Court “ignored the immorality of homosexuality” in its decision to strike down laws that criminalized same-sex sexual activity. In her 2015 book, “The Legal Basis for a Moral Constitution,” Ellis said the Lawrence ruling “set the groundwork for open celebration of homosexuality and all kinds of deviant sexual behavior with any coupling or grouping.”




She has since become a prominent surrogate for the President on TV and radio, defending him during the impeachment trial and praising his handling over the coronavirus pandemic. She drew attention this week when she defended the President from criticism on Monday after a terse exchange with two female journalists led to Trump walking out of the press conference.

After a Twitter user challenged Ellis for applauding Trump's walk out, Ellis tweeted, "This is coronavirus press conference number, what, probably somewhere in the 50s? POC liberal women have been present at every one of them and asked stupid questions. Sometimes for HOURS. This is the first time he's just walked off. Finally. You know nothing. Stop gaslighting."


Ellis's rise in the Trump orbit comes as the Trump administration has rolled back some Obama-era measures designed to advance LGBTQ equality, including rescinding rules on bathrooms for transgender students, effectively banning transgender people from joining the military and moving to scrap anti-discrimination policies for LGBTQ healthcare patients.


In a 2016 presentation to a conservative activist meeting in Denver called "The U.S. Constitution and It's [sic] Origins," Ellis said that legalizing same-sex marriage would set the stage for legal pedophilia and bestiality.

"We're going to completely ignore what the truth says, what God says, and we're going to redefine marriage," said Ellis, arguing that the Obergefell decision that legalized same-sex marriages nationwide would lead to "consequences" such as bestiality and pedophilia.

"It doesn't yet impose restrictions on churches or First Amendment privileges, but we're heading there. And it's setting the stage for polyamory, bestiality and eventually pedophilia," she said.