*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.