Blues for the Judiciary

Why the blue slip could become the newest battleground in the fight over judicial nominees.

December 6, 2013
Judicial Nomination Blue Slip

With judicial filibuster reform now two weeks old, the piece of paper reproduced above represents the next battlefront in the ongoing clash over judicial nominees. It is the “blue slip.”

According to last weekend’s New York Times,“The decision by Senate Democrats to eliminate filibusters for most judicial nominations only marginally enhanced President Obama’s power to reshape the judiciary…because Republican senators can still veto his nominees to most currently vacant appeals court seats” using the blue slip. Kathryn Ruemmler, the White House counsel, added, “The blue slip rule for judges has been more problematic than the filibuster, in part because it is a silent, unaccountable veto.”

If the filibuster is the Senate’s best-known rule, then the blue slip is its third cousin, twice removed, and raised in a foreign country. But according to the current writing on the Obama judicial nominations crisis (here and here and here and here), the blue slip is the new big bad.

It’s not, and judiciary analysts are missing the point. 

But first what is this mysterious blue slip?

Think of it as a hall pass that a nominee has to get from his or her home state Senators. No prospective judge can visit the Judiciary Committee for a hearing without the slip. It’s an almost century-old process used by chairmen of the Senate Judiciary Committee to solicit the advice of the two Senators from a judicial nominee’s state. It applies to district and circuit court judges, since circuit court seats are allocated among the states in a circuit. (It is also used for U.S. Attorneys and U.S. Marshalls).

The blue slip’s impact has varied. It owes its very unwritten essence to the practices, inclinations and prerogatives of the Judiciary Committee’s Chairman. He (and it has always been a he) says what the blue slip says, and he says how he will honor the blue slip. Before today’s chairman, Sen. Patrick Leahy (D-Vt.), will schedule a judicial nomination hearing, both blue slips must be returned in the affirmative.

The potential for abuse is clear. It essentially grants every Senator a filibuster of one over nominees from his or her own state. Recent studies and press reports indicate that the blue slip is and has been used to scuttle nominees in a partisan manner.

The Senators from Arizona have reportedly used the blue slip to block five pending district court nominees from their state. The two Kansas Senators reportedly blue-slipped a nominee they had previously okayed. (We take no position on whether these nominees should be confirmed. These are examples of the blue slip thwarting transparent examination of the nominees via a hearing and a vote).

The blue slip has also been deployed in internal Democratic party squabbles. Early last year, Sen. Robert Menendez (D-N.J.) used the blue slip to block an Obama nominee to the Third Circuit Court of Appeals.

As with all procedures and practices in a political institution, the blue slip is subject to partisan manipulation. But in contrast to the filibuster where there is (or was) safety in numbers and anonymity, blue slips eventually become public. Moreover, it's difficult for a Senator to resist in-state pressure and bad press to wreck a more-often-than-not well-respected, moderate member of the state bar who often has bi-partisan support.

The current blue slip hand-wringing elides a more basic discussion about how judges are selected and nominated in the first place.

True, the blue slip is a fussy relic of an earlier Senate. True, the President has the right to nominate judges. But the Senate does have a role in offering advice and consent. Neither branch of government should take its prerogatives to extremes, and, in the past, the blue slip has helped insure that Senators are consulted about nominees from their states.

This role is proper. Senators are usually plugged into their state’s legal community and more acutely aware of local sensitivities than any President or White House counsel’s office.

Without the Senate’s meaningful advise and consent role, there would be no checks on a President exercising almost unfettered judicial patronage. We should not lightly hobble Senators’ roles in judicial nominations. No one really knows how any President selects judicial nominees, who, if approved, can serve for life. When there is a judicial vacancy, the process for soliciting and screening potential judges is a word-of-mouth system. Phone calls are made. Bushes are beaten. Lists are drawn up and sent to the White House counsel and the Department of Justice. And then a nominee emerges.

Rather than focusing on the blue slip, there should be a bipartisan, transparent, intellectually honest judicial selection and screening process. Indeed, several Senators have created judicial nominations commissions for their states that work in tandem with the White House that reduces the potential for blue slip problems.

Consider what Florida Sens. Bill Nelson (D) and Marco Rubio (R) did this July when four judgeships and a U.S. Attorney slot opened up: they issued a press release via the state bar association calling for applicants. Applications for the positions were available on websites; a deadline established. Members of the nominating committee were public. Committee rules of procedure were drafted in 2009. And in mid-September, the committee publicly submitted a list of finalists to the two Senators.

Judicial nominating commissions seem to have made their debut in the Carter Administration when the President established a national committee for circuit court nominees and “urged senators to appoint their own committees for district judgeships.” Twenty-nine state committees were created. Now there are only 14. But the good news is that three more of them are bipartisan like the Nelson-Rubio one.  (See chart below.)

Given the elevated partisanship over judicial nominations and the current wave of blue slip disparagement, it’s not clear if it will survive. To a certain degree, the blue slip has always functioned as a relative of the filibuster. Judiciary chairmen knew that Senators could always escalate to a filibuster, so the blue slip was a way to front load the question. Now that the judicial filibuster is moribund, the blue slip process owes its existence to the Judiciary Committee chairman’s sense of courtesy.

Leahy has indicated that he would maintain the blue slip. “As long as [it] is not being abused by home-state senators, then I will see no reason to change that tradition.”

But here’s a reform proposal: the Chairman should honor the blue slip for all Senators who have established transparent, bipartisan, and fair judicial nominating commissions. Perhaps in the waning days of old school senatorial courtesy, this vestige of the gentleman’s Senate can be leveraged to inject some greater clarity into the system.

 

States With Judicial Nominating Commissions

Bipartisan

Fla., Ill., Pa., Wis.

Partisan

Calif., Colo., Conn., Hawaii, Mich., Ore., Vt.1, Wash.

 

1.) Sen. Bernie Sanders is an Independent who caucuses with the Democrats.

Source: American Judicature Society

The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.