Kill The Blue Slip!

[ Posted Thursday, February 23rd, 2023 – 16:19 UTC ]

Changes to Senate rules and traditions tend to happen somewhat incrementally. Democrats are currently considering taking another step towards making the Senate actually functional once again, and it is a step that definitely needs taking. Because it is time to kill the "blue slip" on judicial nominations, once and for good.

This is pretty esoteric stuff, so bear with me. The biggest rule change over the past three or four presidencies has been the elimination of the filibuster on judicial confirmation floor votes. Time was when every judicial nominee had to get 60 votes or they didn't become a federal judge. For most this wasn't a problem, since both parties knew the filibuster was only to be used in extreme cases. But then Republicans started blocking President Barack Obama's nominees in a big way. So Harry Reid changed the Senate rule so that filibusters could only be launched for Supreme Court nominations. He left it to Mitch McConnell to take the final step and get rid of even Supreme Court nominee filibusters. Now judicial floor votes cannot be filibustered at all.

All of this served to speed up the confirmation process. But there's another arcane Senate rule that also stands in the way of this streamlining: the "blue slip." This is, in essence, an absolute veto that any single senator can wield over judicial nominations from his or her home state. Here's how it works, from a recent Associated Press article:

Since at least 1917, the chairman of the Senate Judiciary Committee has sent a blue-colored form, or "blue slip," to the senators representing the home state of a judicial nominee. A blue slip returned with a positive response signals the senator's approval of moving forward with a nomination hearing. But if the blue slip is not returned or comes back with a negative response, that means the home state senator objects, which can doom the nomination.

Much like the filibuster, returning blue slips was once rather routine and the only time a senator refused to return one was either because they truly did think the nominee was too extreme -- or because they were using it as leverage to try to force the president to address some unrelated concern.

But when Republicans really got going on blocking Obama's nominees, they started using them in a much more blanket fashion. And then after the changes to the filibuster were fully appreciated, Donald Trump whisked through a record number of judges in his one term. That's what happens when you streamline the process. And then Republicans streamlined it even further (albeit incrementally). They decided to change the tradition so that a lack of a blue slip wouldn't hold up an appellate court nomination any more -- and then they went ahead and confirmed 17 appellate court judges that didn't have both blue slips returned. This, after Republicans had blocked a bunch of Obama nominees. So what some are calling for now is for the Democrats to jettison the practice entirely, which would allow the appointment of even district judges without giving the home-state senators their own individual vetoes over the nomination.

With the streamlined system currently in place, President Joe Biden is also setting a record pace in getting judicial nominations confirmed. But so far he's mostly named them to seats from states with two Democratic senators. Of the current vacancies in states with at least one Republican senator, Biden has only even nominated two out of either 30 or 40 vacancies. [Editorial note: the AP article is contradictory, it says "40" in the text, but the graphic shows only 30.] Which means changing the tradition could open all those seats up to whomever Biden thought was appropriate, without the likes of Ted Cruz or Rand Paul getting in the way.

There's another potent argument to make as well, as the article goes on to point out:

Besides, [the advocates for doing away with the blue slip] argue, if Democrats don't do away with the blue slip now, Republicans will abolish it when they return to the majority.

"Democrats would be chumps to say, 'Oh well, we're not going to do this because it's a tradition,'" said Russ Feingold, the former three-term Democratic senator from Wisconsin who now serves as president of the American Constitution Society. The group is a liberal counter to the conservative Federalist Society.

Besides, Republicans were the ones who started us down this incremental path. When Harry Reid did so on judicial filibusters, McConnell finished the job later. On blue slips, it happened the other way around: Republicans started ignoring blue slips first, so Democrats should repay the favor and get rid of them for good.

If allowing 41 senators to block a presidential nomination to the federal judiciary is unacceptable, then why on Earth should one single senator be allowed to torpedo the process for any reason under the sun? It makes no sense at all, when you think about it rationally. Feingold goes on to argue that abolishing blue slips wouldn't entirely kill the theoretical process that it is supposed to foster -- presidents actually conferring with home-state senators over judicial picks, because home-state senators should know which judge candidates would work well and which wouldn't.

But Feingold, who served 16 years on the Judiciary panel and 18 years in the Senate, said he believes presidents will continue to consult with senators on judicial openings even without the blue slip, because they need a lawmaker's votes on other priorities.

"You need to consult them anyway because if you try to jam somebody really bad down their throat, they are going to remember it," Feingold said.

[Senator Richard] Blumenthal said he will bring lessons learned from the Obama years to the debate, and he's determined not to let Republicans block district judges through the blue slip process the way they did appellate court judges.

"The history is undeniable that Republicans succeeded in blocking many of the Obama nominees, and therefore held open judgeships, which they then filled with alacrity," Blumenthal said. "We're not going to let that happen again."

Blumenthal is right. Democrats shouldn't let it happen. Mitch McConnell will jettison any Senate rule he feels like when it comes to judicial nominations -- he has proven this beyond the shadow of a doubt. It is time for Democrats to return the favor and allow Joe Biden to fill as many vacancies in the federal judiciary as possible, as fast as possible.

The time has come, Democrats. Kill the blue slip!

-- Chris Weigant


Follow Chris on Twitter: @ChrisWeigant


2 Comments on “Kill The Blue Slip!”

  1. [1] 
    nypoet22 wrote:

    Senatorial courtesy has been dead for thirty years, and only now are Democrats starting to wake up to the fact

  2. [2] 
    Elizabeth Miller wrote:


    Well, I wouldn't say completely dead for thirty years. I mean, Biden was still there in 2008. He was certainly one of the last of the practitioners of senatorial courtesy. He tried to leave a lasting impression with his 'Farewell To The Senate' speech ... which every new senator should actually take a look at.

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