On Senate Judiciary Chairman Grassley’s Decision to Abandon the Blue Slip Tradition

by Senator Patrick Leahy (D-Vt.)

As the longest-serving member of the United States Senate and a former chairman of the Senate Judiciary Committee, I feel obligated to speak up about the steady erosion of the Judiciary Committee’s norms and traditions. I am deeply troubled that Chairman Chuck Grassley (R-Iowa) has decided to reverse his blue slip policy.  

The “blue slip” is a century-old Senate tradition that allows senators the courtesy of approving a nominee to the federal bench in their home state. There will surely be an ongoing discussion about the history of the blue slip tradition over the years.  Not all chairmen have adhered to the tradition in the same way. But one thing is beyond dispute: Casting aside blue slips based on how the partisan winds blow will damage the integrity of the Judiciary Committee’s judicial confirmation process.

When I was chairman of the Judiciary Committee, under both the Bush and Obama administrations, not a single judicial nominee received a hearing without first receiving both home state senators’ positive blue slips.  Regardless of who was in the Oval Office, I defended blue slips because I firmly believe in their constitutional importance—to give meaning to the constitutional requirement of “advice and consent.” 

I also firmly believe in the prerogatives of home-state senators, and the need to ensure that the White House works in good faith with those senators.  All of us, both Democrats and Republicans, should care about good faith consultation when it comes to nominees from our own states. Last week, Senator John Kennedy (R-La.) shared his experience with the Judiciary Committee of how the Trump White House “consulted” with him on an important vacancy to a Louisiana-based seat on the Fifth Circuit. The White House failed to provide him with any meaningful opportunity for consultation before informing him that he would need to accept the nomination of a Washington D.C.-based attorney, Stuart Kyle Duncan. And that is how this president consults with a senator from his own party.

My decision to defend blue slips was not without some controversy. I faced significant pressure from my own party’s leadership to hold hearings for President Obama’s nominees who had not received blue slips from Republican senators, including several Republican senators currently on the Judiciary Committee.  And I was criticized by advocacy groups and even the editorial page of The New York Times.  But I resisted such pressure.  I did so because I believed then—and I still believe now—that certain principles matter more than party.

Chairman Grassley has rightly pointed out that not all chairmen followed the same policy as I did. That is a fair statement.  But the fact that he is adopting a different policy from my own is not what I find most concerning. What I find most concerning is that the Chairman is adopting a policy different than his own policy—the one that he applied during the Obama administration.

When Senator Grassley became Chairman of the Judiciary Committee in 2015, I was heartened when he assured me that he would adhere to the same blue slip policy as I did. He wrote that I had “steadfastly honored the tradition” despite those in my party calling “for its demise,” and that he “also intend[s] to honor it.”  During the final two years of the Obama administration, Chairman Grassley kept his word and defended the blue slip tradition.

In 2015 and 2016, nine of President Obama’s nominees, including four circuit court nominees, did not receive positive blue slips from Republican Senators.  Chairman Grassley did not schedule a hearing for any of those nominees—even when home state senators were thoroughly consulted or did not provide a rationale for their opposition. This includes Kentucky Supreme Court Justice Lisabeth Hughes, who was nominated to the Sixth Circuit but opposed by Senator McConnell despite nearly two years of consultation with the White House. This also includes the first African American and first woman on the Indiana Supreme Court, Myra Selby, who was nominated to the Seventh Circuit but opposed by Senator Coats.  And this includes Abdul Kallon, who was nominated to the Eleventh Circuit but opposed by both Alabama senators—despite the fact that they supported his nomination to a district court vacancy a few years before. 

Because these nominees were missing blue slips from Republican senators, none of them received a hearing under Chairman Grassley. And I do not begrudge Chairman Grassley of that. I only ask that all of us, Republicans and Democrats, be treated equally.  Unfortunately, less than year into this new Republican administration, Chairman Grassley has already held hearings for two judicial nominees who have not received favorable blue slips from both home-state senators.

I understand the desire as the Senate Judiciary chairman to help a president of your own party to fill judicial vacancies. And I also understand the significant pressure a chairman receives from within his or her own party to do so—to make it as easy as possible to confirm the nominees of a president from your own party. I received, and withstood, the same pressure when I was chairman.  The dilemma for a chairman is that yielding to such pressure—reversing course on your own policy simply due to a change in the White House—can do lasting damage to the integrity of the Judiciary Committee. 

At its best, the Judiciary Committee can serve as the conscience of the Senate.  It should never function as a mere rubberstamp for nominees seeking lifetime appointments to our federal judiciary.  And blue slips are one of the last remaining guardrails on the nominations process.  

I greatly respect Chairman Grassley as both my friend and a fellow senator. I know he is a chairman who strives to be driven by principle, not party. I urge him to reconsider his decision going forward—and to abide by the same blue slip policy that he applied when a Democrat was in the White House. I urge him to consider the damage we are doing to our Committee by abandoning one of the few remaining sources of bipartisan goodwill in our judicial confirmation process. 

Holes in Grassley’s Blue Slip Story

by Paul Gordon, Senior Legislative Counsel, People For the American Way

*This piece was originally posted by People For the American Way

Chuck Grassley wrote this about blue slips in the Des Moines Register in 2015:

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.

It turns out that only applies to a Democratic president’s nominees. On Thursday, Politico reported that Chuck Grassley is ditching the longstanding Senate blue slip policy and will be holding a hearing for David Stras, even though Stras does not have the support of both of his home state senators. Grassley laid out his justification for this seismic shift in policy in an op-ed in The Hill yesterday. An earlier PFAW post explained how Grassley’s comparison to the 2013 filibuster rules change made no sense. But that’s just one of the many holes in his argument.

For instance, Grassley wrote:

Nearly a century ago, Sen. Thomas Hardwick sent a blue sheet of paper to the chairman of the Senate Judiciary Committee claiming that a nominee from his home state of Georgia was “personally offensive and objectionable.” Nonetheless, the committee proceeded on the nomination and reported the nominee to the Senate floor.

Grassley left out a vital piece of information: Respecting the home state senator’s opposition, the committee reported the nomination negatively, and the Senate rejected it without even bothering to hold a recorded vote.

Hmmmm … I wonder why he would omit such an important detail.

Grassley’s very next paragraph continued the misleading tactics:

That blue sheet of paper was a part of a newly-adopted courtesy to get insights on federal court nominees from home-state senators in an era when such information was hard to come by. This courtesy, commonly known as the blue slip, was intended to serve as an advisory tool – a source of information for senators to consider when casting a vote on the Senate floor.

This newly-adopted courtesy was much more than just an advisory tool. It has ensured that the Senate will not confirm judicial nominees over the objection of either home state senator. It has also been a way to protect the unique nature of the Senate as a collaborative body respecting individual senatorial prerogatives.

According to the Congressional Research Service, the policy was introduced in the 65thCongress of 1917-1918, when Woodrow Wilson was president and his fellow Democrats controlled Congress. That unified control of all the elected branches of the federal government suggests what might be the blue slip’s most important role, whether intended or not: The blue slip was a way for the Senate to protect its institutional interests from the effects of partisan loyalty to the president. In other words, it has served to protect the separation of powers. As we have seen with the Senate GOP’s eagerness to confirm President Trump’s woefully unqualified nominees, such institutional tools are vital. With the Senate rubber-stamping Trump’s judicial picks who will in turn rubber-stamp his actions, the independence of Congress and the courts is threatened. Trump is getting exactly what he wants, and Grassley has now made it even easier for the Senate to serve the president.

Grassley’s op-ed went on:

For the vast majority of the blue slip’s history, a negative or unreturned blue slip did not stop the Senate Judiciary Committee from holding a hearing and vote on a nominee.

A couple of things here. First, Grassley’s phrasing makes it sound like there were lots of committee hearings in the face of unreturned or negative blue slips. But that was simply not the case. His sentence would be true if there had been a thousand negative or unreturned blue slips that the committee chair ignored. But it would also be true – as is the case – if there were few if any.

Second, Grassley once again left out an important detail: In the policy’s earlier incarnations, negative blue slips meant that the home-state senator wanted to testify at the hearing in opposition to the nominee. Holding a hearing during that earlier era was consistent with the blue slip practice. Also consistent with the blue slip practice is the fact that the Senate did not confirm those nominees.

Perhaps my favorite part of the op-ed is Grassley’s attempt to explain away a 2009 letter from every Republican senator to the newly-elected President Obama. Grassley wrote:

The minority also points to a letter signed by Republican senators at the beginning of the Obama administration explaining that senators expected to be consulted on judicial nominees from their home states. This letter merely supported continuation of the strict blue-slip policy adopted by Chairman Leahy (D-Vt.) during the Bush administration. It would have been unfair to allow President Obama to make judicial nominations without home-state senators’ approval when Chairman Leahy demanded such terms under President Bush.

Grassley seems to undermine his own argument here by admitting that “[i]t would have been unfair to allow President Obama to make judicial nominations without home-state senators’ approval when Chairman Leahy demanded such terms under President Bush.”

Just update the presidents: It would be unfair to allow President Trump to make judicial nominations without home-state senators’ approval when Chairman Grassley demanded such terms under President Obama.

Yes, it would be unfair. Nevertheless, Grassley is scheduling a hearing for Stras.

Why be fair when you have power?