by Chris Kang, ACS Board member and former Deputy Counsel to President Obama
*This piece originally ran on Huffington Post
As President Trump seeks to dramatically pack the judiciary with conservative, ideological judges, attention has turned to blue slips—little blue pieces of paper that home-state Senators have returned for a hundred years and allow judicial nominees to proceed to confirmation. Here is what you need to know about them:
The blue slip is not a rule, but it is a 100-year Senate tradition that has been followed by both parties to ensure that the President meaningfully consults with Senators on judicial nominations from their states, allowing Senators to fulfill their constitutional duty to provide “advice and consent” (Article II, Section 2 of the U.S. Constitution) regarding these nominations.
Both home-state Senators receive a blue slip, and each Senator must return a positive blue slip for a judicial nominee to be confirmed—with only 3 exceptions in 100 years, the most recent in 1989.
When the president nominates someone to a lifetime federal judgeship, the Senate Judiciary Committee sends a blue slip to both Senators who represent the state in which the judgeship is located.
Over the past 100 years, the text of the blue slip has changed, and various Judiciary Committee Chairmen have treated blue slips differently, but ultimately, the Senate as a whole has been the final enforcer of the blue slip, by choosing not to confirm nominees over negative blue slips. This is because overriding negative blue slips would diminish every Senator’s influence over his or her home-state’s judicial nominees.
The non-partisan Congressional Research Service has identified only three examples of judicial nominees being confirmed over the objections of a home-state Senator:
1989: Judge Vaughn Walker, nominated by President George H.W. Bush, was confirmed to the U.S. District Court for the Northern District of California over the objection of Democratic Senator Alan Cranston.
1983: Judge John Vukasin, nominated by President Reagan, was confirmed to the U.S. District Court for the Northern District of California over the objection of Democratic Senator Alan Cranston.
1936: Judge Edwin Holmes, nominated by President Roosevelt, was confirmed to the U.S. Court of Appeals for the Fifth Circuit over the objection of Democratic Senator Theodore Bilbo.
A judge has never been confirmed over the objections of both home-state Senators.
Objections by Republican home-state Senators have always been respected.
As noted above, over 100 years, only 3 judges—out of roughly 3000—have been confirmed over the objections of home-state Senators; in all three cases, the Senators were Democrats.
During the Obama Administration, Republicans blocked 18 judicial nominees through blue slips.
Republican complaints about Democratic Senators not returning blue slips on 2 Trump nominees ring hollow (at best) given their obstruction of 18 Obama nominees, including 6 to the circuit courts.
Democratic Chairman Patrick Leahy (2009-14) and Republican Chairman Chuck Grassley (2015-16) enforced blue slips without exception and without any deadline for response. No nominee was moved through the Judiciary Committee without two blue slips. Seventeen nominees were denied even a hearing. Steve Six (10th Circuit-KS) received a hearing after the Kansas Senators initially returned their blue slips, but when they later objected, then-Chairman Leahy withheld Six from receiving a Committee vote, and his nomination did not proceed. The 18 nominees were:
Circuit court nominees blocked via Republican withheld blue slips
Assistant U.S. Attorney Rebecca Haywood (3rd Circuit-PA)
Kentucky Supreme Court Justice Lisabeth Tabor Hughes (6th Circuit-KY)
U.S. District Court Judge Abdul Kallon (11th Circuit-AL)
Victoria Nourse (7th Circuit-WI)
Former Indiana Supreme Court Justice Myra Selby (7th Circuit-IN)
Former Kansas Attorney General Steve Six (10th Circuit-KS)
District court nominees blocked via Republican withheld blue slips
South Carolina Supreme Court Justice Don Beatty (D-SC)
Former Wisconsin Supreme Court Justice Louis Butler (WD-WI)
Judge Elissa Cadish (D-NV)
Former Judge Mary Barzee Flores (SD-FL)
Judge Alison Lee (D-SC)
Judge Dax Lopez (ND-GA)
Assistant U.S. Attorney Jennifer May Parker (ED-NC)
Assistant U.S. Attorney Arvo Mikkanen (WD-OK)
Judge William Thomas (SD-FL)
Natasha Silas (ND-GA)
Former North Carolina Supreme Court Justice Patricia Timmons-Goodson (ED-NC)
Anne Traum (D-NV)
The Judiciary Committee—under both Chairmen Leahy and Grassley—made zero blue slip exceptions during the Obama Administration.
To be clear, there were no exceptions for even a hearing for:
Circuit court nominees (contrary to Republican claims today that circuit nominees should be treated differently from district nominees)
Circuit court nominees with one returned blue slip (Haywood, Nourse, Selby)
Nominees who were current or former state Supreme Court Justices (Hughes, Selby, Beatty, Butler, Timmons-Goodson)
Circuit court nominee who was a current state Supreme Court Justice appointed by a Republican governor (Hughes)
Circuit court nominee elected to the state Supreme Court with greater margins than an objecting home-state Senator (Hughes, who won re-election in 2008 by a 10.4% margin, compared to Senator McConnell, who won re-election that same year by a 6% margin)
Circuit court nomination to elevate a district court judge recommended for that position by the two Republican home-state Senators (Kallon)
Circuit court nominees who received the highest rating, unanimous Well-Qualified, from the American Bar Association (Haywood, Hughes, Kallon, Nourse, Six)
Nominations that would have provided much needed and oftentimes historic diversity on the federal bench: all 17 nominees denied hearings are women (11) or minorities (12), and one is openly gay. This includes 10 African American, one Hispanic, and one Native American nominees.
When Republicans blocked nominees by withholding their blue slips, they often refused to examine or discuss a nominee’s record and based their objections solely on process—despite a record that suggests months or even years of consultation.
President Obama nominated Kentucky Supreme Court Justice Lisabeth Tabor Hughes (appointed by Republican Governor Ernie Fletcher) to serve on the U.S. Court of Appeals for the Sixth Circuit, after waiting more than two years. Senator McConnell blocked the nomination by refusing to return his blue slip because the White House did not accept his preferred recommendation for this vacancy—and he did not comment on Justice Hughes’ record at all.
President Obama nominated former Indiana Supreme Court Justice Myra Selby to serve on the U.S. Court of Appeals for the Seventh Circuit after waiting 17 months. Senator Coats blocked the nomination by refusing to return his blue slip because he wanted Justice Selby’s nomination to be considered by an Indiana Federal Nomination Commission—which he never established, even though he had publicly called for one seven months prior to Selby’s nomination. Senator Coats did not comment on Justice Selby’s record at all.
President Obama nominated U.S. District Judge Abdul Kallon to serve on the U.S. Court of Appeals for the Eleventh Circuit after waiting more than two years. Senators Shelby and Sessions had recommended Judge Kallon for the district court, but they nevertheless blocked his circuit court nomination—without commenting on his record—because they did not feel the White House had negotiated “in good faith.”
When Republicans returned their blue slips, it could take many months—or even years—to do so, undermining Republican whining now that Democrats are taking a few months to review nominees’ records.
President Obama nominated Jill Pryor to the U.S. Court of Appeals for the Eleventh Circuit on February 16, 2012. The Georgia Senators had publicly stated they would return their blue slips on Pryor’s nomination for a lifetime federal judgeship on the district court, but they preferred another candidate for the circuit court. They then withheld their blue slips for more than two years—literally refusing to comment. After the Senators and White House were able to agree on a larger package of nominations, the Senators returned their blue slips on April 29, 2014. On September 8, 2014, Pryor was confirmed by a vote of 97-0.
President Obama nominated U.S. District Judge L. Felipe Restrepo to the U.S. Court of Appeals for the Third Circuit on November 12, 2014. Judge Restrepo had been recommended for the district court by Senators Casey and Toomey, and the Senate confirmed him by voice vote less than 18 months earlier. Senator Toomey had the opportunity to interview Judge Restrepo for the circuit court position a month prior to his nomination, and on the day of Judge Restrepo’s circuit court nomination, Senator Toomey even expressed his support. Senator Toomey waited six months to return his blue slip, on May 14, 2015. For a nominee he had supported all along.
There is no Democratic abuse of the blue slips, as Democrats already have returned blue slips on four circuit court nominees—including two on President Trump’s Supreme Court short-list.
Democratic Senators have returned blue slips on the nominations of Justice Joan Larsen (6th Circuit-MI) and Justice Allison Eid (10th Circuit-CO), both of whom were handpicked by the Federalist Society and Heritage Foundation for President Trump’s Supreme Court short list. Democrats also have returned blue slips on the nominations of U.S. District Judge Ralph Erickson (8th Circuit-ND) and Amy Coney Barrett (7th Circuit-IN). Three of these nominees have already received a hearing.
We must uphold the Grassley-Leahy-Hatch blue slip standard.
Senators Grassley, Leahy, and Hatch have chaired the Judiciary Committee for the past 23 years, spanning two Democratic presidents and two Republican presidents. They have all defended the blue slip.
Diminishing this 100-year old tradition would, as Senator Hatch wrote, “sweep aside the last remaining check on the president’s judicial appointment power.” He added, “A confirmation process without filibuster or blue slip veto would weaken the collaboration between the president and the Senate, further politicize the confirmation process, and ultimately produce a more politicized federal judiciary.”
In 2015, Chairman Grassley wrote an op-ed in the Des Moines Register, stating:
“For nearly a century, the chairman of the Senate Judiciary Committee has brought nominees up for committee consideration only after both home-state senators have signed and returned what’s known as a “blue slip.” This tradition is designed to encourage outstanding nominees and consensus between the White House and home-state senators. Over the years, Judiciary Committee chairs of both parties have upheld a blue-slip process, including Sen. Patrick Leahy of Vermont, my immediate predecessor in chairing the committee, who steadfastly honored the tradition even as some in his own party called for its demise. I appreciate the value of the blue-slip process and also intend to honor it.”
According to Senator Leahy, “[Chairman Grassley] told me he was going to follow the same procedures as chairman. And I take him at his word…I’ve known him for over 30 years. He’s never broken his word to me.”
Instead, Senate Republicans should heed the words of Senator Hatch—who also is the longest serving Republican Senator: “I sincerely hope that the majority will not continue to sacrifice the good of the Senate and the good of the country simply to serve short-term political interests. I’m glad Chairman Leahy has preserved the blue slip process. It should stay that way.”