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On Senate Blue Slips, A Modest Proposal

On the heels of Sen. Rubio’s latest blue-slipping of Judge William Thomas, a call to make the blue-slip process more substantive and, ultimately, more accountable.

Published: January 8, 2014

When the White House published its new list of judi­cial re-nomin­a­tions earlier this week one name was notably absent from the previ­ous list: William Thomas, of Flor­ida, an openly gay, black man whose candid­acy for a federal trial seat was “blue-slipped” by Sen. Marco Rubio, the state’s Repub­lican senator. The Admin­is­tra­tion gave up on Thomas’ nomin­a­tion even though he was well qual­i­fied for the posi­tion and even after Rubio’s stated reas­ons for block­ing the nomin­a­tion were under­mined by, well, by the facts. You could say that Rubio was for Thomas before he was against him.

At least Rubio gave a reason for his flip-flop — at least he put himself on the record explain­ing why he was seek­ing to block the nomin­a­tion after he had initially endorsed it. That is more than most senat­ors do when they invoke the hoary blue-slip proced­ure to knock judi­cial nomin­ees out of the box without a hear­ing or a vote. When Oklaho­ma’s two Repub­lican senat­ors blocked the nomin­a­tion of Arvo Mikkanen for a trial seat in 2011, for example, they never publicly explained why. Nor did Sen. Richard Burr, the Repub­lican from North Caro­lina, who blue-slipped Jennifer May-Park­er’s nomin­a­tion there after first endors­ing her candid­acy.

The blue slip may have a long history in the Senate — the tradi­tion dates back at  least to 1917 (my Bren­nan Center colleague Victoria Bassetti last month posted a very good piece on our site focus­ing upon that history). But Congres­sional tradi­tion or no, there is some­thing decidedly un-Amer­ican about an eval­u­at­ive process that does not permit the person judged, in this case the judi­cial nominee, to be made aware of the reas­ons for the judg­ment. That’s the basis of the Fifth Amend­ment’s confront­a­tion clause — you have a right to face your accuser — and there is no good reason why it should­n’t apply, in some sense, to the continu­ing use of these blue slips.

The blue-slip prerog­at­ive rests always with the chair­man of the Senate Judi­ciary Commit­tee, who today is Sen. Patrick Leahy, the Demo­crat from Vermont. Leahy remains adam­ant that he will continue to honor the tradi­tion even as senat­ors (of both parties) abuse it to prevent decent public servants from filling the nation’s empty benches. Fair enough. I haven’t been able to convince him other­wise — no one has — so I’m going to take a differ­ent approach. If Leahy won’t end the blue-slip tradi­tion, as he should, at least he should imme­di­ately alter it to require senat­ors to expli­citly and in detail describe their reas­ons for block­ing a judi­cial nominee.

Right now, as you can see, the blue slip itself is a simple, anti­quated form. It has two small lines (I approve/I oppose) and four lines for “Comments.” That part of the slip should be revised. An approval, of course, needs no addi­tional explan­a­tion — the senator complet­ing the form will presum­ably be able to express her or his views of the nominee either at the confirm­a­tion hear­ing or before the Senate floor vote that may follow. But if a senator checks off “I oppose” to a nominee that senator ought to be required to explain in detail why. Here are the addi­tional ques­tions I would suggest for the new blue slip:

If you oppose the nomin­a­tion of this judi­cial candid­ate, please state the reas­ons for your oppos­i­tion. Please list any decided court cases or news reports upon which your oppos­i­tion is based. Please list any published comments, writ­ten mater­ial or tele­vi­sion or radio broad­casts made by the candid­ate to which you object.

If you oppose the nomin­a­tion of this judi­cial candid­ate, please state whether you have discussed your oppos­i­tion with the candid­ate and whether you have given the candid­ate an oppor­tun­ity to respond to your objec­tions. Please produce any letters or other writ­ten docu­ments memori­al­iz­ing any such commu­nic­a­tions.

The blue-slip process has been altered and revised before. There is noth­ing in the Consti­tu­tion that precludes adding a substant­ive compon­ent to the process. Nor are there any rules of the Senate that block Leahy from requir­ing his colleagues to justify the use of their “senat­orial cour­tes­ies” with facts. The candid­ates deserve to know why these politi­cians have rejec­ted their nomin­a­tions. And the Amer­ican people deserve to be able to eval­u­ate the bases for those rejec­tions. I know. I know. It won’t be a “senat­orial cour­tesy” any longer if the senat­ors who want to blue slip a judi­cial nominee have to pay a polit­ical price to do so. But that would­n’t be a bad thing, would it?

(Photo: Flickr)