On Tuesday afternoon, the Senate did something that, on the surface, appeared unremarkable. On a 53-46 vote, the chamber confirmed Eric Miller, one of Donald Trump’s many conservative judicial nominees, to serve a lifetime position on the 9th Circuit Court of Appeals.
Among Miller’s opponents were both of his home state’s senators – Patty Murray (D-Wash.) and Maria Cantwell (D-Wash.) – and that’s what made the vote more interesting than one might assume.
In fact, as the Washington Post reported, this seemingly simple confirmation vote made some important history.
Seattle attorney Eric Miller was confirmed as a judge on the country’s most liberal appeals court this week without the consent of either home-state senator, a break from tradition that Democrats say Republicans will come to regret.
Historically, senators from the state where a federal judiciary nominee lives may submit opinions, known as “blue slips,” or choose not to return them.
Before this week, a nominee had never been confirmed without the support of at least one home-state senator, Sen. Dianne Feinstein (D-Calif), the ranking Democrat on the judiciary committee, said in a statement on Wednesday.
I realize that no one would ever consider news about congressional procedures “click bait,” but don’t move on just yet, because I think this is important.
Blue slips are obscure, but they’re part of a longstanding Senate tradition. As we discussed a couple of years ago, the process is pretty straightforward: in order for a judicial nominee to get a confirmation hearing in the Senate Judiciary Committee, he or she needs approval from both of the senators from the nominee’s home state. (They need to, quite literally, return a blue slip to the committee, allowing the process to continue.)
During Barack Obama’s presidency, it meant judicial nominees from states with two Republican senators stood little if any chance of success. During Donald Trump’s presidency, the same is true for states with two Democratic senators.
Now, however, the Senate GOP majority has decided the institution’s norms are no longer binding. Neither Murray nor Cantwell returned the blue slip on Eric Miller, and yet, he was confirmed to the appellate bench anyway.
Or put another way, blue slips, which Republicans have played games with in recent years, have suddenly died a quiet death.
I think this matters for a couple of reasons. First, the tradition is almost certainly gone forever. As a consequence, the next time Democrats are in power, they’ll take full advantage of the new confirmation process.
And second, I think these developments serve as a timely reminder about the degree to which the major parties play by different rules. For the first six years of the Obama era, the Senate Judiciary Committee was led by Sen. Pat Leahy (D-Vt.), who always honored the blue-slip tradition: if two Republican senators from a given state balked at a nominee, Leahy wouldn’t give that nominee a hearing, regardless of merit, regardless of majority support, regardless of the GOP senators’ motivation.
It was how the Senate was supposed to operate and Leahy cared about honoring the rules that came before him.
Politics is different now.