Today, the Senate Judiciary Committee held the first confirmation hearing for a federal appeals court nominee of the Biden administration from a state with two Republican senators: Tennessee’s Andre Mathis. He is a Memphis law firm partner who would sit on the Sixth Circuit Court of Appeals if confirmed.
The party affiliation of Mathis’s home state senators is relevant here because of a Senate tradition known as “blue slips”—literal blue slips of paper that senators return to the Senate Judiciary Committee to signal their support for nominees from their state. Historically, refusing to return blue slip approvals was more or less a way for senators to veto nominations, which Republicans quietly did with great success during President Barack Obama’s White House tenure. When Democrats tried to respond in kind by challenging President Donald Trump’s picks, then-Senate Majority Leader Mitch McConnell and Iowa Senator Chuck Grassley promptly axed blue slips for appeal nominees altogether.
Many Republican senators, Tennessee’s Marsha Blackburn and Bill Hagerty included, seem to have developed a curious case of selective amnesia now that their party is out of power. Moving forward on Mathis’s confirmation without her or Hagerty’s blue slips, Blackburn claimed on Wednesday, was a “departure from tradition” and a “breach of constitutional norms.” Blackburn delivered this public scolding with a straight face despite the whopping 17 Trump appeals court nominees who were confirmed by the McConnell-led Senate without at least one of their home state Democratic senators’ blue slips. Even Louisiana Senator John Kennedy, a Republican, acknowledged as much during the hearing, conceding that his party “did it another way” when it had the chance.
Some Republicans, perhaps aware of the rank hypocrisy involved in protesting the death of blue slips, argued instead that the administration had not sufficiently “consulted” with Blackburn or Hagerty throughout the process. Committee Chair Dick Durbin noted that the White House met with both senators’ offices and solicited their input on nominees before moving forward with Mathis. “So long as there is consultation, the president generally gets to make the call,” he said.
Blackburn, though, characterized this outreach as “insulting” and “disrespectful to the people of Tennessee,” claiming that she hadn’t been contacted about personally meeting with Mathis until Tuesday evening. Grassley, for his part, opined that Blackburn and Hagerty are “right to be upset” at Biden’s supposed disregard for “bipartisan cooperation,” as if a few more phone calls from the White House would have stopped Republicans from objecting to a Democratic nominee any further.
Having exhausted her supply of specious process gripes, Blackburn and her colleagues moved on to a different angle for attacking Mathis: pretending to be really, really concerned about speeding tickets. Apparently, Mathis’s driver license had been suspended three times between 2008 and early 2011 for failure to pay traffic citations. Mathis, who is Black, grew visibly emotional during the hearing, apologized and explained that he’d simply forgotten. “I can assure the committee I’m a law-abiding citizen,” he said. “I feel like I’ve embarrassed my family.”
This was not enough for Blackburn, however, who told Fox News that the length of Mathis’s “rap sheet” shows that “he believes himself to be above the law.” (A notable choice of words on Blackburn’s part, given that, as Mathis pointed out, he’d never been arrested or charged with a crime, let alone convicted of one.) Setting aside the obvious fact that one’s DMV record has no bearing on one’s qualifications for public service, Blackburn, who once showed her congressional pin to a police officer who had pulled her over near the Capitol, really shouldn’t be talking.
Beyond the intricacies of Senate minutiae and a detailed debate about traffic laws, what senators were really arguing about on Wednesday is whether home state senators still have the power to veto federal appeals court judges. Under Trump, Grassley and McConnell and company pretty clearly established that the answer is no. However much the GOP may want to backtrack now, the blue slip era is over. Any Republicans still complaining about it have only themselves to blame.