There’s so much to be outraged about on so many fronts right now that lamenting the loss of “blue slips” is like mourning the tail of a tiger long gone. The Republican majority has already stripped the minority of its right to filibuster Supreme Court nominations. Ignoring senators who don’t mark a blue piece of paper to indicate support for a federal judicial nomination would effectively strip one last tool from the minority.
For almost a hundred years, this quaint practice has enforced the Senate’s role of “advise and consent,” established in the Constitution. If a senator doesn’t return the blue slip, it’s an automatic red light for the nominee, power that in the best of times forces consultation and consensus and yields judges who can win more than a narrow party-line vote.
“By ending the blue slips, you take away any semblance of accountability in the judicial nominating process, and we have essentially one-party rule,” says Nan Aron, President and founder of the liberal advocacy group, Alliance for Justice.
Senate Majority Leader McConnell served notice earlier this month when he told The New York Times that blue slips “ought to simply be a notification of how you’re going to vote, not the opportunity to blackball.” This was taken as a signal that if Democrats withhold blue slips on Trump’s judges, he would stop the practice just as he stopped the filibuster earlier this year in order to confirm Supreme Court Justice Neil Gorsuch.
This is particularly grating to Democrats who dutifully deferred to Republican home state senators when President Obama was in the White House. McConnell personally blocked Obama’s choice of Kentucky Supreme Court Justice Lisabeth Tabor Hughes because he wanted someone else. Her appointment to the Sixth Circuit had been stalled for months when Justice Scalia died in March of 2016.
McConnell kept both seats vacant until after the November election, pocketing a Supreme Court seat for President Trump and confirming his choice, Judge Amul Thapar, to the Sixth Circuit over the opposition of 44 senators.
After benefiting enormously from the blue slip tradition, McConnell had a change of mind when Democratic senators from Minnesota and Oregon did not return their blue slips for two Trump picks for the Court of Appeals. Democrat Al Franken set the stage for a confrontation when he said he would not support Minnesota Supreme Court Justice David Stras. Franken didn’t offer hard evidence as to why he was withholding his support. It was more of a gut reaction as articulated in his statement that Stras would be a “deeply conservative jurist” in the mold of Justices Clarence Thomas and Antonin Scalia, “who the nominee himself has identified as role models.”
Oregon Senators Wyden and Merkley withheld their blue slips largely on procedural grounds. They had not been consulted on the nominee, and the White House had bypassed their state’s bipartisan judicial selection panel. There hasn’t been much vetting of Trump’s pick, Ryan Bounds, but the fact that his sister is Oregon Republican Greg Walden’s chief of staff has set off alarm bells about nepotism and favoritism that the blue-slip process is designed to protect the judiciary from.
“I don’t know if there’s anything particularly bad about him except he just blew through the Senators’ process, and if that’s the case, then it’s clear the White House is just trying to pick a fight over blue slips.” says Christopher Kang, who oversaw judicial nominations in the Obama White House.
The blue-slip tradition has been violated only three times, most recently in 1989 and 1983 when California Democrat Alan Cranston refused to return his blue slip when President Reagan and then President George H.W. Bush were in the White House. Before that, you have to go back to 1936, when a judge nominated by FDR was confirmed over the objection of Democratic Senator Theodore Bilbo of Mississippi.
No judge has ever been confirmed over the objections of both home-state senators — a precedent that may soon be broken.
“It’s important to set the record straight on the history of the blue slip. The bottom line is that no judicial nominee has been confirmed without two blue slips in nearly 30 years, and fewer than five times in the last 100 years. Not a single Obama nominee received even a hearing in the Judiciary Committee, let alone a floor vote, without both blue slips having been returned,” Sen. Diane Feinstein wrote in a long statement Monday, noting the “troubling trend thus far in the Trump administration—candidates meeting only with Republican senators before they’re chosen.”
She concluded: “If Senate Republicans expect to play a role in choosing judicial nominees during the next Democratic administration, they need to think long and hard about moving to eliminate the blue slip today.”
In aiming to end the blue slip tradition, McConnell is guilty of hypocrisy, a common ailment in Washington, and he’s put Iowa Republican Chuck Grassley in an untenable position. When Grassley took over as chairman of the Judiciary Committee in 2015, he said he would honor the blue slip tradition. Now the focus is on him, and whether he will deal the final blow to the longstanding practice and schedule hearings for Stras and Bounds without home-state backing.
Former Judiciary chairman Patrick Leahy never once deviated from the blue slip tradition, and 18 Obama appointees never got hearings. All but one was a woman or a minority, part of Obama’s commitment to bring more diversity to the courts. Leahy took heat for that from fellow Democrats, and had to fend off then Senate leader Harry Reid, who wanted him to suspend the blue slips so Obama could get more judges.
Leahy fiercely defends the blue slip as vital for the senate to advise and consent. He believes Grassley will honor his pledge, saying that in their 30-year relationship, Grassley has never broken his word.
The question for Grassley now is if he will live up to his self-image as an institutionalist who embodies the better angels of the senate, or if he will carry out McConnell’s plan and end one of the body’s finest bipartisan traditions.