Amplification/clarification: In a post yesterday, I stated that Senator Ron Wyden had blocked action on President Bush’s 2008 nomination of Marco A. Hernandez by never returning a blue slip approving the nomination. I relied on knowledgeable Senate sources, whose account that Wyden never returned a blue slip is corroborated by written reports. See Table 4 of Mitchel A. Sollenberger’s “The Blue Slip: A Theory of Unified and Divided Government, 1979-2009, p. 150 (stating that Senator Wyden’s action on the Hernandez blue slip was “Not Returned”); Table 1 of Congressional Research Service memorandum (Feb. 5, 2009) (listing Hernandez among unconfirmed nominees not receiving positive blue slips from both home-state senators).
It turns out that the fuller (and previously unknown) record is more complicated and susceptible of competing interpretations. Senator Wyden’s staff has documented for me that Wyden sent Judiciary Committee chairman Leahy a letter on September 25, 2008, stating his understanding that the committee had not yet reviewed Hernandez’s FBI background file but setting forth his approval of the nomination—and attaching a positive blue slip—“contingent upon this review being completed without an indication of any problems.” Wyden’s staff has further informed me that, after committee staff completed review of the FBI background file in early October 2008 and briefed Wyden on the review, Wyden told committee staff to consider his blue slip “officially returned.” But a knowledgeable source tells me (and the sources cited above would appear to confirm) that committee Republicans were never informed that Wyden had returned a positive blue slip. Update: Wyden’s staff informs me that the committee clerk has no record of a positive blue slip from Wyden on the 2008 Hernandez nomination.
One interpretation of this set of events is that Wyden acted in a timely manner to support the Hernandez nomination—that he indeed returned his contingent blue slip when he might reasonably have waited until the committee review of the FBI background file was complete. Consistent with this interpretation, Wyden’s staff has documented for me that Wyden, in a July 2009 letter to the White House, added Hernandez’s name to the list of candidates that the state selection committee had recommended that President Obama consider for the vacancy. Under this interpretation, either Leahy slow-rolled the 2008 nomination on his own, or the nomination just came too late to be processed. (I will note that the other district-court nominee nominated the same day as Hernandez was confirmed; three nominees nominated a day later were confirmed; and four other nominees nominated no more than 13 days earlier were also confirmed.)
A competing (more cynical, and therefore more plausible?) interpretation is that Leahy and Wyden worked together to slow-roll the Hernandez nomination—in order to deprive President Bush of credit for a Hispanic appointee—and to give Wyden plausible deniability about blocking a Hispanic nominee. Under this theory, Leahy’s staff delayed reviewing Hernandez’s FBI background file until it was clearly too late to act on the nomination, and Wyden sent his contingent approval to Leahy only after Leahy had already held the final confirmation hearing of the year.
I will note that nothing in this amplification affects my bottom-line judgment that the Oregonian was wrong to somehow draw from the Hernandez confirmation process the lesson that “more than a few Republicans are all too eager to get their hands on Obama’s appointments.”