November 7, 2017

A Return to a Full and Fair Process for Judges

  • Democrats are abusing the blue slip courtesy to block qualified Republican judicial nominees from even getting a hearing.
  • Neither Senate nor Judiciary Committee rules require blue slips, and for most of Senate history the views of home-state senators have been considered advisory.
  • Since the blue slip courtesy began in 1917, only two of the previous 18 Judiciary Committee chairmen have required two positive blue slips before committee consideration.

Senate Republicans are working with the administration to appoint judges who rule based on the law, not on their policy preferences. The Democrats have attempted to obstruct and delay these efforts to confirm mainstream and highly qualified judges, including by forcing needless cloture votes on non-controversial nominees with broad bipartisan support.

Blue Slip

In 2013, the Democrats forced a change in the interpretation of Senate cloture rules to reduce the votes required to advance lower-court nominees. Since losing control of the Senate, they have found new ways to obstruct Republicans from confirming mainstream conservative judges. Now they are turning a Senate courtesy – the “blue slip” – on its head to prevent any committee action on Republican judicial nominees.

Blue slips refer to a Senate courtesy giving senators an opportunity to comment on judicial nominees from their home state before the Judiciary Committee moves forward on the nomination. It is literally a blue slip of paper issued by, and returned to, the chairman of the Judiciary Committee on which a senator can check a box indicating whether or not the senator approves of the nominee. No matter how a senator fills out the blue slip, the senator is free to vote for or against a nominee in committee and on the floor.  

there is no rule on how to treat blue slips

Neither Senate nor Judiciary Committee rules refer to blue slips. The treatment of blue slips is solely the prerogative of the chairman of the Senate Judiciary Committee, and the vast majority of chairmen have treated blue slips as advisory.

According to a 2007 paper by a Brookings Institution scholar, “the original blue slip, seems to have been devised as an ‘early warning system,’ not an absolute veto.” It is used to elicit home-state senators’ views on a judicial nominee early in the confirmation process and encourage consultation between the White House and home-state senators.

According to the Brookings scholar’s research, it “was not until James Eastland [D-MS] took the helm of the panel in 1956 that negative blue slips came to be treated as an absolute veto—a practice that Edward Kennedy [D-MA] tempered upon becoming chair of the committee in 1979.” Since the custom began in 1917, only two of the previous 18 Judiciary Committee chairmen have given blue slips veto power over committee activity. The rationale for treating blue slips as merely advisory is even stronger for circuit court nominees. Unlike district courts, a circuit court covers multiple states, and so there is less reason to give one state’s senator veto power over a judge for the entire circuit.

Weaponizing blue slips

Recent events have made clear that Democrats are using blue slips for political purposes. At least three circuit court nominees have been held up by unreturned blue slips. For example, the president nominated Justice David Stras of the Minnesota Supreme Court to the Eighth Circuit Court of Appeals on May 8. While Justice Stras is from Minnesota, the Eighth Circuit also comprises six other states. Justice Stras’ nomination garnered strong bipartisan support from Minnesota law professors, retired Minnesota Supreme Court justices, and members of the Minnesota Bar. He received the highest possible rating from the American Bar Association.

Senator Al Franken refuses to return his blue slip on Justice Stras, strictly for ideological and partisan reasons. These kinds of reasons have been given little weight by Judiciary Committee chairmen in determining whether to proceed on considering a nominee. In 2001, Senator Dianne Feinstein, now the ranking member of the committee, said that it is the “duty” of the committee “to confirm or reject a nominee based on an informed judgment that he or she is either fit or not fit to serve” by examining “the evidence presented at a hearing.” She cautioned against treating blue slips as dispositive because they would be used “to stop nominees for political or other reasons having nothing to do with qualifications.”

Issue Tag: Judiciary