“Despite press reports that the Chairman of the Judiciary Committee now may be considering changing the Committee’s practice of observing senatorial courtesy, we, as a Conference, expect it to be observed, even-handedly and regardless of party affiliation. And we will act to preserve this principle and the rights of our colleagues if it is not.”
What short memories members of congress seem to have. The quote above is an excerpt from a letter signed by every GOP senator including Chuck Grassley (R-IA) and Mitch McConnell (R-KY) and sent to President Obama in 2009 warning that they wouldn’t allow judicial nominees to move forward if they weren’t first approved using the “blue slip” process.
That was in 2009, when Republicans had neither a majority in the Senate nor an ideological ally in the White House. Now it’s 2017 and my, how things have changed! When it comes to Trump’s nominees, McConnell and Grassley are doing a politically expedient about face. Grassley, the current chair of the Senate Judiciary Committee, announced last week that he would allow hearings to proceed for two nominees despite the fact that their home state senators had not returned positive blue slips.
So what's a blue slip?
The blue slip process is a tradition of "senatorial courtesy" that actually dates back to the very origins of our republic.
In 1789 George Washington sent particular senators his list of nominees for port tax collectors. Next to the nominee's name, a clerk noted each senator's vote of either approval or dissent.
Every nominee received an "aye" except for poor Benjamin Fishbourn of Georgia. (Fishbourn was opposed by GA Senator James Gunn who preferred a candidate who was a close political ally.) Fishbourn became the first presidential nominee to be rejected by the Senate. This is where the tradition began.
There are two versions of the blue slip, one in the House and one in the Senate. The House version involves tax and spending bills. In the Senate "blue slip" refers to the letter printed on blue paper (thus the term) sent to home state senators from the chair of the Judiciary Committee, allowing them to weigh in on a particular judicial nominee.
One of the earliest examples of a blue slip from 1917.
It's been a longstanding tradition of the Senate Judiciary Committee that both home state senators of a nominee, even if they're not on the committee, must turn in the blue slip in order for the committee to move the nominee forward for consideration. Senators may also choose to not return a blue slip on the candidate, and in the past this often meant that the nominee wouldn't get a hearing. A "negative" blue slip was seen as a veto, and the chairman would refuse to move the nomination forward. Either way, the blue slip gave the Senate a participatory role in both the advisory and consent part of the process. A role, which many believed, ensured a qualified and mainstream judiciary.
That’s what Senator Grassley said in 2015. But now, on November 29th in fact, the Senate Judiciary Committee will consider two circuit court nominees who have not received the support of both of their home state senators: Kyle Duncan of Louisiana (nominated for the 5th Circuit Court of Appeals) and David Stras of Minnesota (nominated for the 8th Circuit Court of Appeals).
Reviews from home state senators on both Stras and Duncan are mixed. Senator Amy Klobuchar has returned a favorable blue slip on Stras, but Senator Al Franken has decided to withhold his because he fears Stras’ would be a “deeply conservative jurist. Louisiana Senator Bill Cassidy (of Graham-Cassidy fame) approved of Duncan’s nomination; Louisiana’s other Republican senator, John Kennedy has yet to return his blue slip.
If we take a closer look at Kyle Duncan’s record, we get a better understanding of the kind of judicial candidates the blue slip was designed to prevent.
What we know about Kyle Duncan:
He was raised in Baton Rouge and was Louisiana’s solicitor general from 2008 to 2012. Duncan has never been a judge, but he has what some have called “sterling credentials with right wing political activists”.
The blue slip was designed to block extremist nominees like Kyle Duncan. The tradition also gives the party that's not in power some say in the process. “Blue slips are one of the few weapons that are left to protect the minority’s rights,” said Carl Tobias, a University of Richmond law professor and an expert on the judicial nominations process. “They also protect home state senators’ prerogatives to affect who is nominated from their states, which could be important for GOP senators who disagree with Trump.”
A recent memo from Grassley’s staff stated, “A blue slip policy allowing a single senator to block a nominee from even receiving Committee consideration is a more extreme example of a counter-majoritarian practice.”
Chuck Grassley doesn’t face his electorate for another 6 years. But some of his colleagues in the Senate won’t be as lucky. Come 2018, if they continue to ignore Senate tradition they won't have to worry about about returning blue slips. They'll be getting pink slips from us!
Learn more about the judicial process on our Federal Court System page.
For more information on judicial nominees go to the Alliance for Justice at www.afj.org.
What's At Stake With The Judiciary
140 federal judicial vacancies
19 in circuit courts
121 in district courts
52 judicial emergencies
10 for circuit courts
42 for district courts
46 nominees to the federal bench
10 circuit court
36 district court
19 nominees pending on the floor
posted by Amy Levengood