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Analysis

Blue Slip Blues: 5 Corrections to the Ongoing Debate

The Senate Judiciary Committee is seeing a renewed debate around ‘blue slips,’ which give Senators input on judicial nominees from their states.

  • Laila Robbins
September 15, 2017

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. 

(Photo: Think­stock)