Senators Al Franken (D–MN) Ron Wyden, and Jeff Merkley (D–OR) have announced they will not submit affirmative “blue slips” to the Senate Judiciary Committee for two of President Trump’s judicial nominees, effectively halting nomination proceedings. This has renewed debate over the utility of the blue slip. Some have called for its elimination, arguing it allows needless obstruction of qualified nominees. Senator Mitch McConnell’s recent statement that “the blue slip, with regard to circuit court appointments, ought to simply be a notification of how you’re going to vote, not the opportunity to blackball,” indicates Republicans will soon move to eliminate or weaken the blue slip. Democratic senators and advocates argue the blue slip serves an important purpose, and hope to persuade Republicans to maintain the tradition. The ongoing blue slip debate is peppered with misconceptions about the blue slip’s history and current usage. Here are five corrections to the blue slip debate.
What is a “blue slip”?
After a President nominates a judge for a vacant district or circuit court judgeship, the nomination must pass through the Senate Judiciary Committee. For the Judiciary Committee to consider a nominee, the nominee’s two home state senators must first submit affirmative “blue slips,” so-called because they are printed on blue paper. If a Senator withholds his or her blue slip, or chooses to oppose the nominee, currently, the Judiciary Committee will not move the nomination forward.
1. Blue slip policy has changed multiple times in recent decades, but the current policy is the same blue slip policy Chairman Leahy maintained during both the Obama and Bush presidencies.
The Senate Judiciary Committee’s policy on blue slips has changed over time: before Senator Patrick Leahy (D–VT) was Chairman, a negative blue slip did not necessarily halt nomination proceedings. The blue slip practice, adopted by the Senate Judiciary Committee in 1917, was initially established to ensure the White House consulted with home state senators in selecting nominees. The blue slip itself, however, was a courtesy; in practice, initially, a negative or nonreturned blue slip did not halt nomination proceedings. The Congressional Research Service found that over the past few decades, Chairmen of the Senate Judiciary Committee have adopted different blue slip policies:
- In 1989, Chairman Joe Biden (D–DE) established that a negative blue slip “will be a significant factor to be weighed… but it will not preclude consideration of that nominee.”
- In 1998, under the Clinton Presidency, Chairman Orrin Hatch (R–UT) changed the official text of the blue slip to “No further proceedings on [a] nominee will be scheduled until both [affirmative] slips have been returned.”
- In 2001, after President George W. Bush was elected, Chairman Hatch (R) reinstituted Biden’s policy: a withheld blue slip was significant, but did not halt nomination proceedings.
- 2001-2003: Chairman Leahy’s (D) blue slip policy was that two positive blue slips were necessary to consider a nominee.
- 2003-2005: Chairman Hatch’s (R) policy was that negative blue slips were significant but not dispositive.
- 2005-2007: Chairman Arlen Specter’s (R–PA, switched to D in 2009) policy was that a negative blue slip halted district court nominations, but not circuit court nominations.
- 2007-2015: Chairman Leahy’s (D) policy – throughout the Bush and Obama presidencies – was that a negative blue slip halted nomination proceedings.
2. The way Democrats are using the blue slip is not new. In fact, Republicans are calling for Democrats to move nominees through the Judiciary Committee significantly faster than they did under Obama.
Under Obama, withheld blue slips were respected as dispositive. Kyle Barry of the NAACP Legal Defense and Educational Fund notes that Republicans’ withheld blue slips blocked 17 of Obama’s nominees.
The confirmation process for Obama’s nominees was also unusually slow relative to past presidencies, partially due to Republican blue slip threats. Sheldon Goldman, Professor of Political Science at the University of Massachusetts, Amherst, measured historical senatorial delay of judicial confirmations, and found that Obama’s nominees faced “unprecedented levels” of obstruction and delay. Similarly, Russell Wheeler of the Brookings Institution found that “of the 29 nominee-less vacancies [in 2013], 26 were in states with a Republican senator and were well over a year old on average,” and that it took Obama longer than Bush, on average, to submit judicial nominations, indicating more aggressive Republican blue slip threats and bargaining than under past presidencies.
There is no indication yet that Trump’s nominees are facing similar levels of obstruction. According to Russell Wheeler, on average, Obama’s judicial nominees waited upwards of 200 days to be confirmed. On the other hand, data from the Alliance for Justice as of September 12th reveals that Trump’s nominees have only been pending in the Judiciary Committee for 44 days on average (excluding Trump’s nominees on 9/7/17, the average would be 67 days). Republicans criticizing Democrats for withholding or not yet turning in their blue slips are espousing standards they did not hold themselves to under Obama.
3. Consultation with home state senators prior to submitting a nomination has remained a central tenet of blue slip policy.
Historically, one element of blue slip policy has remained constant — that the White House must consult with home state senators prior to submitting a nomination. Throughout changes to blue slip policy, all the Chairmen of the Judiciary Committee — from Biden, to Hatch, to Leahy — emphasized that the Administration must consult with home state senators prior to naming a nominee for the nomination to proceed. The blue slip principally aims to ensure the White House consults home state senators about nominations; throughout changes to the policy, this underlying principle has endured.
4. Democratic Senators are withholding blue slips because they say the White House did not consult with them before submitting nominations. Republican Senators used this same argument to justify withholding blue slips under Obama.
Sens. Wyden and Merkley explained that they informed the White House “they would not greenlight any candidate that had not been approved by a bipartisan judicial selection committee in the state.” After the White House bypassed their process, they withheld their blue slips.
Similarly, one reason Sen. Franken withheld his blue slip was because he hoped
“President Trump would work with me to identify a consensus candidate…[But] the White House had already settled on Justice Stras before first approaching me, and the president nominated him despite the concerns that I expressed.”
These rationales reflect the historical commitment to pre-nomination consultation with home state senators as the bedrock of blue slip policy. In fact, some Republicans who withheld blue slips under Obama offered similar explanations — while others offered partisan explanations.
5. History demonstrates that blue slip policy does not have to be politicized.
Chairmen Biden and Leahy both maintained consistent — albeit different — blue slip policies through Republican and Democratic presidencies. Biden maintained that negative blue slips were significant but not dispositive under George H.W. Bush and Clinton. Chairman Leahy maintained that negative blue slips halted nominations through Bush and Obama’s presidencies, and despite pressure to change blue slip policy to prevent Republican obstruction.
Only Chairman Hatch espoused different blue slip policies under Democratic and Republican presidencies. Under Clinton, Hatch respected withheld blue slips as dispositive. After Bush was elected, Hatch changed his policy, and treated blue slips as non-dispositive. (In fact, Hatch claimed he maintained the same policy, although documentation of his practice suggests there was a switch). Democrats argued this move relayed partisan gamesmanship: Hatch allowed Republican Senators to block Clinton’s nominees, but prevented Democratic Senators from correspondingly blocking Bush’s nominees.
Hatch’s actions deviated from historical blue slip policy. Biden and Leahy’s consistent blue slip policies demonstrate that blue slip policy does not have to be — and historically, has not been — politicized.
History reveals the blue slip need not be motivated by partisan gamesmanship, but current Chairman Grassley (R–IA) may deviate from his predecessors and politicize the blue slip. Under Obama, Grassley required two affirmative blue slips for a nomination to proceed; with Senate Republicans pressuring Grassley to eliminate the blue slip, he must decide whether to change his blue slip policy to advance partisan goals, or to maintain the policy he espoused under Obama.