April 4, 2017
Private: Blue Slips and the Trump Administration: What to Expect in the Coming Months
*This post was adapted from a longer piece at The Vetting Room.
On March 21, 2017, President Trump made his first lower court nomination: Judge Amul R. Thapar, for a seat on the Sixth Circuit Court of Appeals. With over 136 current and future vacancies on the federal bench, more nominees will likely follow. With a Republican majority in the Senate, the elimination of the filibuster on lower court nominations and conservative groups howling for blood, there is little incentive for Trump to choose moderates for the bench. However, one Senate practice may work to constrain Trump’s more conservative nominees and encourage him to work with Democrats: the blue slip.
Derived from the traditions of senatorial courtesy, the blue slip is named after the traditional blue paper it is printed on. When a nominee is submitted to the Senate Judiciary Committee, “blue slips” are sent to the senators representing the nominee’s home state. The senators then return the blue slip, indicating either approval or disapproval of the nominee. If a home state senator expresses opposition to a nominee, or refuses to return a blue slip, the Committee does not move the nomination to the floor.
While the blue slip practice goes back about 100 years, there are rare examples of nominees moving through the Senate Judiciary Committee without two positive blue slips. In 1983, then Judiciary Committee Chairman Strom Thurmond (R-SC) processed (and the Senate later confirmed) John Vukasin to a seat on the Northern District of California, over the objection of Sen. Alan Cranston (D-CA). A few years later, then-Chairman Joe Biden (D-DE) processed President George H.W. Bush’s nomination of Vaughn Walker to the same court, again over Cranston’s objection.
Current Judiciary Committee Chairman Chuck Grassley (R-IA) has indicated that he will not move nominees without the support of both of the nominee’s home-state senators. This policy is consistent with the practice established by previous Chairman Patrick Leahy (D-VT). As such, the Trump Administration, in seeking to remake the federal bench, finds itself in an analogous position to the Obama Administration in 2009.
As such, the Trump Administration should expect Democratic Senators to use the blue slip process to pre-clear judicial nominees for their state. Under the Obama Administration, Republican Senators took a similar stand, blocking nominees they viewed as insufficiently conservative. Sens. Lindsay Graham (R-SC) and Tim Scott (R-SC) blocked Judge Alison Renee Lee’s nomination to serve on the U.S. District Court for South Carolina based on allegations that she was “soft-on-crime”. Sen. Dean Heller (R-NV) blocked the nomination of Judge Elissa Cadish for the U.S. District Court in Nevada based on her opinion, offered before the Supreme Court held otherwise, that the Second Amendment does not protect the right to bear arms for an individual.
Even if the Trump Administration chooses to pre-clear its nominees with home-state senators, Democrats may, consistent with the actions of Republican Senators, withdraw their support after nomination. In 2011, Sen. Pat Roberts (R-KS) initially expressed support for the nomination of Steve Six to the Tenth Circuit. However, under pressure from conservative groups, he and Sen. Jerry Moran (R-KS) came out in opposition to Six shortly after his hearing, essentially killing his nomination. Similarly, President Obama’s nomination to the Northern District of Georgia after Boggs, Judge Dax Erik Lopez, a Republican and a member of the conservative Federalist Society, was blocked by Sen. David Perdue (R-GA) after conservative groups objected to Lopez’s membership in Latino civic organizations. Sen. Marco Rubio (R-FL) blocked two nominees to the Southern District of Florida, Judge William Thomas and Mary Barzee Flores, after initially indicating his support to the White House.
The Trump Administration may strike “package deals” with Democratic Senators, appointing Democrats to some courts in exchange for support for its own picks. President Obama struck a number of such deals with Republican Senators. For example, Sens. John McCain (R-AZ) and Jeff Flake (R-AZ) negotiated a package of six district court nominees that filled several long-standing vacancies on the Arizona District Court. Similarly, the White House was able to appoint David Hale, a Democrat, to the Western District of Kentucky only when paired with Greg Stivers, a Republican, and close friend of Sen. Rand Paul (R-KY).
In negotiating such package deals, the Trump Administration may face blowback from its own base. In 2013, the Obama Administration’s decision of appoint Judge Michael Boggs to a seat on the Northern District of Georgia, as part of a package negotiated with Sens. Saxby Chambliss (R-GA) and Johnny Isakson (R-GA), faced massive opposition from civil rights groups. Boggs’ conservative stances as a state legislator, including his support for the state’s confederate flag, attracted particular attention. Ultimately, the White House was forced to jettison Boggs, and leave the seat vacant.
Unfortunately, the Trump Administration cannot avoid this problem by refusing to engage with Democratic Senators. Under such circumstances, Democratic Senators would likely follow the lead of their Republican counterparts in blocking the resulting nominations. In 2011, Sens. James Inhofe (R-OK) and Tom Coburn (R-OK) used the blue slip process to block confirmation on Arvo Mikkanen’s nomination to a seat on the Northern District of Oklahoma, claiming they were not consulted before the nomination was made. Similarly, Sens. John Cornyn (R-TX) and Kay Bailey Hutchison (R-TX) refused to approve any nomination to Texas courts that was not vetted through their selection committee, cutting Democrats out of the process. Trump’s own attorney general, when he was a senator, blocked the nomination of Judge Abdul Kallon to the Eleventh Circuit claiming insufficient consultation.
With Republicans in the majority, and the filibuster for lower court nominations abolished, it is understandable that conservatives may savor the opportunity to remake the judiciary. However, the blue slip remains as an important tool for Democrats to temper the ideology of Trump’s judicial nominations. If Democrats choose to use blue slips as aggressively as Republicans did during the Obama Administration, Trump will have no choice but to work with Senate Democrats to choose consensus candidates for the lower courts.