Judge in Oregon National Guard Case Revives Blue Slip Debate

A Trump-appointed judge’s decision to temporarily block the president’s deployment of US troops to Portland, Oregon, to quell protests reinvigorated debate over the president’s ability to appoint like-minded judges in Democratic-controlled states.

US District Judge Karin Immergut’s order Saturday drew praise from the left — and a few on the right. Observers saw it as proof that concerns over President Donald Trump’s expansive use of executive power transcend the political spectrum, and are shared among even his own appointees.

But allies of the president say that Immergut, who was confirmed to the bench in 2019, isn’t an authentic Trump appointee because of a Senate custom that mandated her nomination to the Oregon federal court get approval from the state’s two Democratic senators, Ron Wyden and Jeff Merkley. Rather than leave the Oregon judgeship vacancy for a potential Democratic presidency, Trump chose a middle-of-the-road candidate.

That custom, known as the “blue slip,” prevented the president from installing his preferred picks in Democratic-controlled states in his first term, said Robert Luther III, a former White House lawyer who worked on Trump’s first term judicial nominations. And some Trump allies want the Republican-controlled Senate to get rid of it this time.

“In these hard blue states with two Democrat senators, those of us doing selection know at the outset that the reality is that a lot of these people are not in simpatico with the president’s judicial philosophy,” Luther said of nominees who’d get support from Senate Democrats.

Trump and his allies haven’t shied away from criticizing judges who’ve ruled against the president or his administration. Trump said that Immergut should be “ashamed” for her ruling, and White House Deputy Chief of Staff Stephen Miller called the Immergut ruling “legal insurrection.”

Traditional Credentials

Immergut came to the White House’s attention as a nominee after applying to the judicial selection committee set up by Wyden and Merkley. She was among the candidates they forwarded to the White House in 2018, she said in answers to her Senate Judiciary Committee questionnaire.

She brought traditional Republican credentials, including a stint in the district attorney’s office where police detectives nicknamed her “the stalker” for her doggedness. She joined Independent Counsel Kenneth Starr’s investigation of former President Bill Clinton when she questioned witnesses including Monica Lewinsky, according to a 2004 story in the Oregon State Bar Bulletin.

Immergut went to work for the US attorney’s office in Oregon three months after 9/11 and was later nominated to lead it by President George W. Bush. She served as a judge in Multnomah County Circuit Court in Portland for 10 years before her nomination to the federal bench.

Second Term

This term Trump has sought out “bold” judicial nominees unafraid to make controversial rulings, including those in his favor.

Democrats have largely dismissed Trump’s judicial nominees this term as unqualified and selected only for their fealty to a president who has lashed out at judges who rule against him. Trump is unlikely to find a receptive audience in Senate Democrats for the kinds of judges he’d prefer for district courts in their states.

Luther said he’d prefer nominees get a vote before the Senate Judiciary Committee and potentially the whole Senate rather than nominees be at the mercy of one senator in their home state. It’s a future he endorses for both Republican and Democratic presidents.

“This is why elections matter,” Luther said.

Preserving Tradition

Gregg Nunziata, executive director of the conservative Society for the Rule of Law, said the blue slip tradition is an important guardrail against presidents who want to use judicial appointments as a loyalty-based patronage system.

Nunziata said that it is unlikely that Immergut views the law in ways the president would prefer. In her case, the blue slip process produced a mainstream conservative judge “reflective of broad consensus and how federal judges across the spectrum and even across the Republican Party would approach problems like this,” Nunziata said.

“The administration wants to create a case that suggests that blue slips are preventing them from putting good judges in place. I just think that’s not true. It’s preventing them from putting loyalists in place,” said Nunziata, a former chief nominations counsel to Senate Judiciary Committee Republicans under George W. Bush.

While presidents of both parties have had frustrations with the Senate tradition, it’s an institutional prerogative that senators from both parties aren’t interested in tossing. Senate Judiciary Chair Chuck Grassley (R-Iowa), who got rid of the tradition for appeals court nominees under the first term, said he’s keeping it for district picks.