Jonathan Chait has a typically well-wrought and forceful column today arguing that the only real “high stakes” in the federal portion of the midterm elections is its impact on the judiciary:
The difference between 50 Democratic senators (plus a tie-breaking vote by Joe Biden) and 49 Democratic Senators is the difference between two full years of filling the judiciary and two years of likely gridlock. What’s more, if a Supreme Court justice becomes incapacitated or dies, the judicial gridlock could become a Constitutional struggle — a possibility I explored last spring, but which has gathered little attention. News reports have wildly overstated the legislative importance of Republican Senate control. At the same time, they have understated its importance to the judiciary.
I more or less agree, though it’s hard to know exactly how a Republican Senate would affect legislation since there are other “players” (the White House and the U.S. House) whose attitudes will matter a lot on that subject. But there’s one detail on the judicial front that Chait doesn’t mention, but which matters: right now any Republican senator can block confirmation of a judicial nominee in his or her state under the “two blue slips” system imposed by Judiciary Committee chairman Pat Leahy (see this post from Jamelle Bouie for the background on this system and its history). These holds are normally resolved by deals between the objecting senator or senators and the White House, and while they are not binding on the full Senate, they determine who makes it as far as a confirmation hearing. So (a) the ability of Republicans to block judicial nominees they don’t like will simply expand from the 32 states in which they currently have a senator to the full 50; and (b) there’s precedent in the “deals” that are used to get around blue slips for bigger deals to get compromise “slates” of judges confirmed.
But that raises another question: what’s the position of the Iowa farmer famously in a position to take over the Senate Judiciary Committee on blue slips? You’d normally figure Grassley would keep the current two-blue-slip system in place so long as a Democrat occupied the White House, and get rid of blue slips altogether if he’s still around when a Republican becomes president (as Orrin Hatch did during W.’s presidency). But you never know until you ask. After some googling, I discovered Grassley reassured antichoice activists–who are exquisitely sensitive about holding choke points on judicial nominations–that he loves blue slips:
[A]ccording to a spokesperson for Judiciary Committee ranking member Chuck Grassley, R-IA, “the blue slip process has been working as it should.”
“Senator Grassley appreciates the Chairman [Sen. Leahy] honoring a process that dates back approximately 100 years and ensures cooperation and consultation between the White House and home state senators,” the spokesperson told LifeSiteNews. “It’s good for the Senate and good for the Judiciary.”
Again, Grassley may not be around when the next Republican president is elected, but if he is, he should be reminded of this quote. And in the meantime, we should keep in mind that the politics of judicial nominations are more complicated than the question of who runs the Senate.
