Handgun lying over a copy of the United States constitution and the American flag.

Don’t Let Senate Democrats Blue Slip the 2nd Amendment

Republicans prevented Senate Democrats from filibustering Neil Gorsush’s nomination, thereby enabling a simple majority of senators to seat a Second Amendment champion on the Supreme Court. But Senate Democrats are threatening to use a different Senate rule to defeat other pro-Second Amendment nominees.

Democrats’ Use of Blue Slips Against Lower-Court Nominees

Senator Michael Bennet (D-Colo.) joined 44 other Democrats in unsuccessfully opposing Gorsuch. Now imagine Bennet having the power, by himself, to scuttle Gorsuch’s Supreme Court nomination simply because Gorsuch resided in Bennet’s home state. That’s how another Senate rule can operate against nominees for the other federal courts, as explained by Elizabeth Slattery at the Heritage Foundation:

Since the early twentieth century, the Chairman of the Senate Judiciary Committee—the committee responsible for evaluating judicial nominees before they are sent to the full Senate—has sent letters on blue paper (“blue slips”) to senators from a nominee’s home state asking them to approve or object to the nomination.

Democrats’ ability to blue slip judicial nominees poses serious risks for gun owners. Supreme Court nominations obviously have the greatest impact upon the judiciary because precedent from that court binds the lower courts. But the Supreme Court has inexplicably been avoiding Second Amendment cases, as Justice Clarence Thomas, joined by Justice Gorsuch, noted a few weeks ago:

The Court has not heard argument in a Second Amendment case in over seven years…. Since that time, we have heard argument in, for example, roughly 35 cases where the question presented turned on the meaning of the First Amendment and 25 cases that turned on the meaning of the Fourth Amendment. This discrepancy is inexcusable….

Thus, for Americans besieged by gun-grabbers in California and elsewhere, the circuit courts are likely to be the only courts willing to issue rulings in Second Amendment cases. Whether those decisions are good or bad depends on how successful Trump is in getting pro-Second Amendment judicial nominees seated on the appellate courts.

Pro-2nd Amendment Nominees Will Likely Get Blue-Slipped

There are 20 states whose senators are both Republicans. Pro-Second Amendment nominees residing in them won’t get blue-slipped. Conservatives from the other 30 states that have at least one Democratic senator, however, aren’t so lucky. For example, Donald Trump nominated Joan Larsen, currently a justice on the Michigan Supreme Court, for the Sixth Circuit Court of Appeals. Even the liberal American Bar Association determined she was “well qualified,” its highest rating. Yet her nomination may well get blue slipped by Michigan’s Democratic senators.

If Democrats get away with blue slipping Larsen, they’ll blue slip other conservatives. And Trump will likely avoid the problem in the future by simply refusing to nominate other blue-state conservatives.  This would be an enormous loss. One example of a brilliant Second Amendment scholar Trump should nominate for the Ninth Circuit but hasn’t (at least not yet) is UCLA Law School Professor Eugene Volokh. Volokh has published countless law review articles over the past two decades (and, a few months ago, a concise easy-to-follow video) explaining how the Second Amendment gives individuals the right to keep and bear arms and debunking the Left’s claim that the Amendment applies only to the National Guard.

The late Justice Antonin Scalia cited Volokh’s scholarly work in the Supreme Court’s decision in District of Columbia v. Heller, the 2008 landmark case applying the Second Amendment to individuals.

Volokh is also the chief blogger for the Washington Post’s “Volokh Conspiracy” and has filed numerous amicus briefs in the Supreme Court. These include briefs supporting the First Amendment rights of Christians to protest at abortion clinics and avoid photographing same-sex weddings as well as a brief in the recent Trinity Lutheran Church case in which the Supreme Court prohibited government discrimination against churches seeking to participate in state programs.

The odds of Feinstein and Sen. Kamala Harris (D-CA) blue-slipping a heretic Californian like Volokh are 100%. Which means there is a near 0% chance of him and other blue-state advocates of Second Amendment rights getting nominated – unless Senate Republicans reform the blue slip rule.

Republicans Need to Eliminate Blue Slips for Appellate Nominees

Each chairman of the Senate Judiciary Committee determines how blue slips are applied. In recent decades, some have treated them as vetoes while others have allowed certain nominations to proceed despite a home state senator issuing one. Senator Charles Grassley (R-IA), the current chair, has not given any firm indication (at least not publicly) as to how he’ll respond to blue slips.

Blue slips are not found in the Constitution or any formal Senate rule. Rather, they are a “courtesy” extended by the Senate Judiciary Committee to senators when a judicial nominee resides in the senator’s state. But that courtesy is far too broad. It is one thing to give added weight to a California senator’s opinion concerning nominees for federal district courts in California – the havoc these nominees can wreak is largely confined to California. It is quite another for a California senator to be able to veto a Ninth Circuit nominee who would hear appeals arising from eight other western states besides California.

If Grassley goes wobbly, Democrats will blue slip judicial nominees who take the Second Amendment seriously. Trump will be forced to nominate mushy “moderates,” thereby depriving Americans of the kind of judiciary he promised during the campaign.

Fortunately, some conservatives are pressuring senators to protect Trump’s appellate court nominees. And at least some Republican senators, such as Jeff Flake, John Cornyn, and Tom Cotton, recognize what’s at stake. Supporters of the Second Amendment need to get the others off the fence as well.

About the author

Matthew Monforton

View all posts