In the aftermath of yesterday’s firing of the US Attorney in the Southern District of New York (SDNY), Sen. Lindsay Graham of South Carolina, the current Chairman of the Senate Judiciary Committee, made a significant “unforced error” in the ongoing PR campaign against Attorney General William Barr and Pres. Trump.

Late Friday afternoon AG Barr announced that former US Attorney Geoffrey Berman for SDNY would be stepping down, and Pres. Trump would be nominating Jay Clayton, currently the Chairman of the Securities and Exchange Commission, to be the new US Attorney.  Later that night Berman issued a press statement saying he was not resigning, and Armageddon seemed to break out at DOJ — according to the press.  AG Barr settled the matter by simply firing Berman, effective immediately, on Saturday afternoon.

But Sen. Graham, reliably willing to wade into a controversy where he’s not needed and muck things up in an unnecessary fashion, generated an entirely new set of “talking points” for the anti-Barr/Trump crowd and the media by stating that the nomination of Jay Clayton to be the new US Attorney for the SDNY would proceed according to the normal rules of the Senate Judiciary Committee, and that the “Blue Slip” tradition with regard to such nominees would be followed.  By doing so he pretty much tanked the Clayton nomination to the position less than 24 hours after it had been announced.

I’m not suggesting that the Senate and Judiciary rules should not be followed.  What I am suggesting is that there was no purpose in Graham’s sticking his nose into the matter and generating a Saturday night press story that will now stretch into Sunday.

The “Blue Slip” tradition is a Senatorial privilege whereby the home state Senators of particular executive branch appointees must give their “consent” to the nomination of specific individuals to those positions before such nominations will be debated and voted upon by the Judiciary Committee.  They indicate their “consent” to the nomination by returning the “Blue Slip” to the Chairman of the Committee.  The failure to return a Blue Slip is a simple way to kill a nomination because the Chairman — if he follows the tradition — won’t bring a nomination before the Committee for a vote without first receiving two Blue Slips from the home state Senators.

This tradition has been the subject of much debate, and Sen. Grassley while serving as Chairman of the Committee altered the practice by declining to allow the blue slip “vetoes” to be exercised with regard to nominations to Circuit Court judgeships.  The failure to return a Blue Slip for a Circuit Court nominee is no longer a basis to prevent a committee hearing and vote, and if the nomination is advance to the Senate floor, the home state Senators can make their objections known at that point.

But the positions of both US Attorney and district court judge continue to be subject to the tradition — and that was the point Sen. Graham made yesterday.  His comment said to Chuck Schumer and Kristin Gillibrand that if they do not like the nomination of Jay Clayton, they can simply decline to return the blue slip and he won’t be considered by the Committee.  So I expect that is exactly what we will see happen.

There are reasons behind the “blue slip” policy, and there are reasons why Sen. Graham would want to continue the policy.

The positions of US Attorney and district court judges have direct and immediate impact on the home state populations of the Senators who hold the “blue slip” privilege.  The tradition began in the early 1900s, and has been modified in practice over the past century depending on the party in power and the Chairman of the Judiciary Committee.  But the current practice on US Attorneys and district judges has been consistent for a long time — the absence of two blue slips from home state Senators will prevent a nominee from getting hearing in the Committee.  This allows the home state Senators to have a direct hand in the selection of the individuals nominated by the Administration to serve as chief federal prosecutor back home, and as trial court judges resolving cases and controversies of the electorate that voted the Senators into office.

When the home state Senators belong to the same party as the President, these choices are easy — generally the Senators get the positions filled with people they select.  When the two Senators are from different parties, the Senator from the same party as the President has the most influence, but generally “checks in” with the other Senator on the intended nominees before forwarding them to the White House.

And even when both Senators are from the opposition party, most states have a system in place to handle the selection of individuals for these positions.  I was involved in a tangential way with such a circumstance a long time ago.  The home state Senators and the White House created committees to screen potential nominees for the US Attorney and open district court positions.  The Committees had both Democrat and GOP participants from the legal community.  There were six members, and a potential nominee had to get votes from 4 of the 6 in order to be considered.  The Committee produced five names for each position using this process, and each home state Senator could strike one of the five from the list if they chose to do so.  The remaining names were sent to the White House Counsel’s Office, and the WH made the selection from the names submitted.

Apparently there is no such process available for the US Attorney position for the SDNY.  There has never been a nominee for that position sent from the White House to the Senate.  The obvious reason seems to be that Chuck Schumer won’t agree to any person who has been suggested by the White House, so sending over a nominee is pointless because Sen. Schumer will kill any such nominee.

Schumer made it known before Trump was even inaugurated that he wanted Preet Bharara, the US Attorney appointed by Obama, to remain in the position during the Trump Administration.  Bharara worked for Schumer in the Senate before he was named US Attorney in New York by Pres. Obama.  In an effort to “court” Sen. Schumer prior to being inaugurated, Pres. Trump said he would consider keeping Bharara in place.  He met with Bharara, and according to Bharara the Pres. asked him to not resign.  Bharara remained in the position for a little less than two months after the inauguration, but AG Sessions sought his resignation along with the other 43 Obama appointed US Attorneys in March 2017.  Schumer has never agreed to any nominee to take his place.

And with Lindsay Graham’s announcement yesterday, it’s almost a certain he won’t agree to Jay Clayton’s nomination either.

Lindsay Graham is not going to abandon this tradition for US Attorney nominations — not for Jay Clayton or anyone else.  This tradition allowed him and Tim Scott to greatly influence the pick the US Attorney in South Carolina when Barack Obama was President, and it will allow him to do the same thing in 2021 if Joe Biden is President and a Democrat is Chairman of the Judiciary Committee.  Sen. Graham is supported in this attitude by every other GOP Senator, and all the Dem and GOP Senators understand the rules as they exist.  They all enjoy the benefit of this tradition when they are in the minority — as many GOP Senators were in 2008-2010.  There is no sentiment in the Senate on either side to change the blue slip tradition for US Attorney and district judge positions.

Even a Senator as obstinate and partisan as Patrick Leahy from Vermont respected the tradition while Pres. Obama was in office, and refused to advance nominees without blue slips from GOP Senators who objected to selections by the Obama Administration.  He might have even do on behalf of Lindsay Graham.