The Real Al Franken Revealed: Will it Break the Log-Jam on Judges?

The picture of Senator Al Franken groping a sleeping colleague hit while I was attending The Federalist Society conference in Washington, D.C. last week.

The next day, Senator Grassley, the chair of the judiciary committee, announced that he was going to proceed with a hearing for judicial nominee David Stras. Justice Stras is on the Minnesota Supreme Court; he was nominated months ago by the President to serve on the Eighth Circuit Court of Appeals.

So why hasn’t the Senate taken up the Stras nomination?

The U.S. Senate tradition, which is entirely extraconstitutional, is to wait for the senators from an affected state to signal their willingness to allow a hearing on the qualifications for federal judges. The tradition dictates that both senators are allowed to send what is called a “blue slip” to the judiciary chair. And yes, the slip is blue.

The blue slip tradition has put two senators from the opposing party in charge of nominees for the Eighth Circuit Court of Appeals and the U.S. Federal District Court (MN) which currently has two openings. Many other openings are expected during Trump’s presidency so this initial round of negotiations, will set the tone for years to come.

The tradition has held up hearings for months for states like Minnesota that have two Democratic Senators. After wrangling with the White House over what she can get in return for her cooperation, Senator Amy Klobuchar released her blue slip for David Stras about two weeks ago. Good for her.

Stras is not only qualified but highly qualified for the position, and Klobuchar knows it.

Despite these qualifications, Senator Franken, who was never expected to be cooperative, has not followed Klobuchar’s reasonable lead. But the good news,is that his cooperation is no longer needed; Senator Grassley, who is an institutionalist, has finally done what he should have done right from the start.

According to people I spoke to in D.C., Grassley has planned to drop the blue slip tradition for the Stras nomination before the news about Franken hit. The Franken mess was not the reason Grassley changed his mind but he had to feel better about it after the news hit. This is good because it means the chair might be persuaded to do the same thing for district nominees.

Here is why.

The Republicans conduct themselves as though collegial deference will win them friends from the other side of the aisle. The blue slip tradition is a perfect example of this. The idea is that senators from an affected state may have special knowledge of judicial nominees. The tradition began 100 years ago when the Senate was a very different place; hearings on a president’s nominees were the exception, not the rule.

Whatever the merits of this tradition may have been, if his left Minnesota with multiple vacancies. That means the courts are not functioning at full capacity; litigants are on hold entirely for political reasons.

Even if Al Franken was worthy of the office of U.S. senator, the tradition must go.

Our Constitution gives the president of United States, whether you like him or not, the power to nominate federal judges. The Senate has the power to advise and consent, which is not the same as block and tackle. Traditionally, if a nominee was qualified, the president got his nominee confirmed. Each party understood that when it was their party’s turn at bat, they would benefit from that same deference.

But the game has changed, and so must the rules.

Unfortunately, Senator Grassley has only agreed to waive the blue slip on a selective basis. His reasoning is that the Court of Appeals covers multiple states, so he would not allow two senators from just one of those states to hold up a hearing. It remains to be seen if Grassley will allow Klobuchar and/or Franken to hold up the District Court nominees; they are expected to be nominated after the appellate circuits have been completed. There is also a matter of U.S. attorney and U.S. marshal before the Senate.

Why would Sen. Grassley and the White House put two senators of the opposing party in charge of any of these nominations?

I appreciate the traditions of the Senate as an institution, though less and less these days. It’s time to update those traditions to acknowledge that the current culture of the Senate does not reward gentle manners and collegiality.

Perhaps if Senator Grassley and his colleagues learn how to hit back and hit hard, the other side will sit up, take notice and even return to collegiality.