MegacastVPAID Ad Controller00:00:15nationalreview.comhttp://mega.vast.mega-tags.com/config?key=576ac7597bc63&sid=2365049098-f2905264-4b36-578c-7468-2c41a2ea995a&source=undefined&VIDEO_DESCRIPTION=Some%2050%20or%20so%20law%20professors%20(including%20some%20conservatives)%20recently%20signed%20a%20letter%20to%20the%20Senate%20Judiciary%20Committee%20complaining%20about%20new%20Republican%20senator%20Ron%20Johnson%E2%80%99s%20non-return%20of%20a%20%E2%80%9Cblue%20slip%E2%80%9D%20on%20President%20Obama%E2%80%99s%20nomination%20of%20Wisconsin%20law%20professor%20Victoria%20Nourse%20to%20a%20seat%20on%20the%20Seventh%20Circuit.%20In%20my%20judgment%2C%20the%20letter%20is%20very%20unfair%20to%20Senator%20Johnson%2C%20as%20it%20fails%20to%20acknowledge%20that%20his%20exercise%20of%20his%20blue-slip%20prerogative%20is%20well%20within%20the%20bounds%20of%20Senate%20practice.%0A%0A%09As%20I%E2%80%99ve%20made%20clear%2C%20I%E2%80%99m%20no%20fan%20of%20the%20Senate%E2%80%99s%20blue-slip%20policy%2C%20the%20internal%20Senate%20procedure%20that%20gives%20senators%20in%20a%20particular%20state%20special%20power%20to%20obstruct%20executive-branch%20and%20judicial%20nominations%20in%20their%20state.%20I%E2%80%99m%20especially%20not%20an%20admirer%20of%20the%20expanded%20version%20of%20the%20blue-slip%20policy%20that%20Democrats%20extracted%20from%20then-chairman%20Specter%20in%20the%20Bush%2041%20years%E2%80%94which%20gave%20individual%20senators%20an%20effective%20veto%20even%20over%20federal%20appellate%20judgeships%20associated%20with%20their%20states%20(even%20though%20the%20laws%20do%20not%20assign%20appellate%20judgeships%20by%20state%20and%20the%20caseload%20of%20an%20appellate%20judge%20has%20no%20more%20connection%20to%20one%20state%20than%20to%20any%20other%20in%20a%20circuit).%20As%20I%20explained%20at%20the%20end%20of%20the%20Bush%2041%20presidency%2C%20%E2%80%9CThis%20Senate%20Republican%20conferral%20of%20extraordinary%20leverage%20on%20obstructionist%20Democrats%20explains%2C%20for%20example%2C%20why%20a%20Fourth%20Circuit%20seat%20regarded%20as%20belonging%20to%20Maryland%20has%20been%20vacant%20throughout%20Bush%E2%80%99s%20presidency%E2%80%94and%20why%20so%20many%20other%20seats%20were%20filled%20with%20compromise%20candidates.%E2%80%9D%0A%0A%09That%20said%2C%20there%20is%20nothing%20remarkable%20about%20Senator%20Johnson%E2%80%99s%20non-return%20of%20a%20blue%20slip%20on%20Nourse.%0A%0A%09Obama%20first%20nominated%20Nourse%20in%20July%202010%2C%20but%20the%20Senate%20Judiciary%20Committee%20did%20not%20hold%20a%20hearing%20on%20her%20nomination%20last%20year.%20(The%20law%20professors%E2%80%99%20letter%20asserts%20that%20no%20hearing%20was%20held%20%E2%80%9Cbecause%20the%20Judiciary%20Committee%20stopped%20any%20hearings%20prior%20to%20the%20mid-term%20elections%2C%E2%80%9D%20but%20in%20fact%20hearings%20on%20appellate%20nominations%20took%20place%20on%20September%2015%2C%202010%2C%20and%20September%2029%2C%202010%2C%20and%20it%20is%20not%20at%20all%20clear%20that%20Nourse%20faced%20any%20timing%20obstacle.)%20The%20Senate%20returned%20pending%20judicial%20nominations%2C%20including%20Nourse%E2%80%99s%2C%20to%20Obama%20at%20the%20end%20of%20last%20year.%20Obama%20then%20proceeded%20to%20renominate%20Nourse%20on%20January%205%2C%202011%E2%80%94the%20same%20date%20that%20Senator%20Johnson%2C%20who%20defeated%20Russ%20Feingold%E2%80%99s%20bid%20for%20re-election%2C%20was%20sworn%20into%20office.%0A%0A%09I%20am%20reliably%20informed%20that%20the%20White%20House%20did%20not%20consult%20at%20all%20with%20Senator%20Johnson%20before%20renominating%20Nourse.%20Further%2C%20Johnson%20has%20plausibly%20complained%20about%20Nourse%E2%80%99s%20lack%20of%20ties%20to%20the%20legal%20community%20in%20Wisconsin%3A%20Nourse%20was%20not%20even%20a%20member%20of%20the%20state%20bar%20when%20she%20was%20first%20nominated.%20(She%20became%20a%20member%20in%20December%202010.)%20These%20are%20well-accepted%20and%20conventional%20grounds%20for%20declining%20to%20return%20a%20favorable%20blue%20slip.%0A%0A%09As%20I%20understand%20it%2C%20Johnson%20has%20not%20invoked%20the%20apparent%20ideological%20gulf%20between%20himself%20and%20Nourse%20(or%20between%20his%20understanding%20of%20the%20role%20of%20the%20courts%20and%20hers)%20as%20a%20further%20reason%20for%20not%20returning%20a%20blue%20slip.%20But%20he%20would%20be%20well%20within%20his%20rights%20to%20do%20so%2C%20as%20many%20of%20the%20senators%20who%20declined%20to%20return%20positive%20blue%20slips%20on%E2%80%94and%20thereby%20blocked%20confirmation%20of%E2%80%94ten%20of%20President%20George%20W.%20Bush%E2%80%99s%20federal%20appellate%20nominees%20and%20twelve%20of%20his%20federal%20district%20nominees%20can%20amply%20attest.%0A%0A%09I%E2%80%99ll%20also%20note%20that%20the%20law%20professors%E2%80%99%20letter%20never%20openly%20acknowledges%20that%20Nourse%E2%80%99s%20initial%20nomination%20was%20returned%20and%20that%20that%20she%20had%20to%20be%20renominated%20during%20Johnson%E2%80%99s%20tenure.%20It%20instead%20resorts%20to%20a%20series%20of%20odd%20locutions%20to%20obscure%20this%20fact%3A%20e.g.%2C%20it%20asserts%20that%20Johnson%E2%80%99s%20non-return%20of%20the%20blue%20slip%20came%20%E2%80%9Cmonths%20after%20the%20nomination%20was%20complete%E2%80%9D%3B%20that%20he%20%E2%80%9Cretroactively%20assert%5Bed%5D%20this%20%5Bblue-slip%5D%20privilege%E2%80%9D%3B%20and%20that%20new%20senators%20%E2%80%9Ctypically%20%E2%80%A6%20have%20no%20power%20to%20countermand%20completed%20presidential%20nominations.%E2%80%9D&VIDEO_DURATION=&VIDEO_ID=&VIDEO_KEYWORDS=&VIDEO_TITLE=%7C%20National%20Review&VIDEO_URL=&r=0.5683984449133277http://mega.vast.mega-tags.com/stop?key=576ac7597bc63&sid=2365049098-f2905264-4b36-578c-7468-2c41a2ea995a&source=undefined&lifetime={LIFETIME}&external={EXTERNAL}&ads={ADS}&r=0.5683984449133277]]>