Murray said in a statement that Republicans “have been trampling” on Senate precedent in order to place “extreme conservatives” on the courts, adding that she cannot be “complicit.”
“This needs to end. So I am not going to be complicit in this latest rushed process to load the courts with Trump nominees in the lame duck session and I will not be returning the blue slip that signals my approval of this process,” said Murray, who is a member of Democratic leadership.
Eric Miller, who has been nominated to the 9th Circuit Court of Appeals, is scheduled to testify before the Judiciary Committee on Wednesday. The panel is holding the hearing even though the Senate is in recess until Nov. 13.
The Wednesday hearing will be the second that the Judiciary Committee has held during the recess, a move that has infuriated Democrats and outside progressive groups.
Republicans say the dates were agreed to by Sen. Dianne Feinstein (D-Calif.), Feinstein’s staff counters that she didn’t agree to hold hearings on judicial nominees if the Senate began its pre-election recess early.
Murray, on Tuesday, added that Republicans should “step back from this mad dash” and the Judiciary Committee should delay Wednesday’s hearing.
“[Then] we can work together next Congress to consider the President’s nominees in the bipartisan and considered way that has worked before,” she added.
The office for Murray’s fellow Washington senator, Maria Cantwell (D), didn’t immediately respond to a request for comment about if she would also refuse to return her blue slip.
A spokesman for Cantwell did tell The Seattle Times in July, shortly after Miller’s nomination was announced, that Cantwell “did not and does not consent” to his nomination.
But opposition from Murray and Cantwell — and either one or both of them refusing to return a blue slip on Miller’s nomination — is unlikely to stop Republicans from advancing him.
Democrats nixed the 60-vote filibuster for most nominations in 2013, meaning Republicans, who hold 51 seats in the Upper Chamber, can clear circuit court nominations by a simple majority.
And Senate Republicans have warned they won’t let the refusal of a home state senator to return a “blue slip” — a sheet of paper that indicates if they support the nominee — to stop the Senate from moving them forward.
The “blue slip” rule — a precedent upheld by Senate tradition — has historically allowed a home-state senator to stop a lower-court nominee by refusing to return a sheet of paper, the “blue slip,” to the Judiciary Committee.
But how strictly the precedent is followed is decided by the Judiciary Committee chairman — in this case, Sen. Chuck Grassley (R-Iowa) — and enforcement has varied over the years.
Grassley sent a letter to Cantwell and Murray last week saying they had not returned their blue slips but also not given any “substantive reasons for your opposition.”
“My preliminary conclusion is that the White House staff attempted to engage in meaningful consultation with you but that their engagement was not reciprocated. … I believe the White House engaged in meaningful consultation with you regarding the Ninth Circuit vacancy in Washington,” Grassley wrote in the letter.
Senate Republicans have confirmed a handful of circuit court nominations even when one home state senator did not return their slip.
And the Judiciary Committee advanced Ryan Bounds’s 9th Circuit nomination to the floor even though neither home-state senator — Sens. Jeff Merkley (D-Ore.) and Ron Wyden (D-Ore.) — returned their blue slips. But Bounds’s nomination was ultimately withdrawn when it became clear he did not have the 50 votes needed from Republicans.
Republicans have raced to confirm Trump’s judicial nominees, including setting a record for the number of circuit court picks confirmed during a president’s first two years.
BY JORDAIN CARNEY – 10/23/18