Op-ed by Christina Pesavento, legal affairs fellow at the Committee for Justice, published in The Hill.
With judicial confirmation battles heating up and Republicans in control of both the White House and the Senate, Democrats are grasping for a way to stall the president’s nominees to the federal courts. Depending on how far Senate Democrats go, Republicans have several options for pushing back.
Now that the judicial filibuster has been abolished, the Democratic minority in the Senate is taking advantage of one of the only tools they have left: an arcane but long-established Senate tradition known as the “blue-slip rule.” If abused by Senate Democrats, the blue-slip rule could enable them to grind the nomination process to a halt.
However, it is unlikely that Senate Judiciary Chairman Chuck Grassley (R-Iowa) will let them.
Often characterized as an exercise in senatorial courtesy, the blue-slip rule is an informal custom enabling the Judiciary Committee to gather input from certain senators on a given nominee. Senators from the nominee’s home state are asked to sign and return a literal blue slip of paper indicating their support for, or objection to, the nominee. Failure to return the slip to the committee indicates an objection, as does the return of a negative blue slip.
However, because the blue-slip rule is a custom as opposed to a formal rule, its interpretation is left entirely to the discretion of the Judiciary Committee chair.
The use of blue slips began during the early twentieth century under President Woodrow Wilson. For decades, negative blue slips merely signaled the potential for strong floor opposition to a nominee. In fact, no chair of the Judiciary Committee allowed a home-state senator to veto the consideration of a nominee until 1956, when Sen. James Eastland (D-Miss.) took control of the Judiciary Committee.
Under Chairman Eastland, a negative or unreturned blue slip operated as an absolute veto, preventing a district or circuit court nominee from getting a hearing. Some argue that this policy was motivated by a desire to block anti-segregationist judges. But whatever its origin may be, the absolute veto was discontinued after Eastland's chairmanship, returning only when Sen. Patrick Leahy (D-Vt.) became chair of the Committee under President Obama and adopted the Eastland policy.
Now Republicans are in control of the Senate and Sen. Grassley is at the helm of the Committee. With Senate Democrats behaving as if they might turn this senatorial courtesy into a tool for broad obstruction, some GOP senators have hinted at doing away with the rule, or at least diluting its power. Predictably, Senate Democrats have balked.
“In my view,” notes Sen. Al Franken (D-Minn.), “the blue slip plays an important role in ensuring that the Senate is able to fulfill its constitutional duty to provide ‘advice and consent.’ The Committee should continue this custom and not change it simply because there’s a new president in the White House.”
If Grassley wishes to uphold the blue-slip tradition, he has several options at hand for honoring it without allowing Democrats to obstruct the confirmation process entirely. Interestingly, three of these options were developed by previous Democratic Judiciary chairs and one by a Republican-turned-Democrat.
The first option would be adhering to the Eastland/Leahy “absolute veto” rule by treating a negative/non-returned blue slip as a bar on the Committee’s consideration of a nominee. Though Sen. Grassley has indicated general support for the "blue slip process," he has never committed to Sen. Leahy’s interpretation, and is unlikely to do so as it would allow Democrats to obstruct the confirmation process on a large scale.
A second option—the Kennedy Rule—reflects the policy of Sen. Ted Kennedy (D-Mass.). Serving as Judiciary chair from 1979 to 1981, Sen. Kennedy instituted a time-limited method of honoring the input of home-state senators. “If the blue slip is not returned within a reasonable time,” he announced, “rather than letting the nomination die I will place before the committee a motion to determine whether it wishes to proceed to a hearing on the nomination notwithstanding the absence of the blue slip.”
The Biden Rule, a third option, stood in place when then-Sen. Joe Biden(D-Del.) chaired the committee for nearly a decade, between 1987 and 1995. In a letter to President George H. W. Bush, Biden articulated his consultation-based version of the blue-slip rule as follows:
“The return of a negative blue slip will be a significant factor to be weighed by the committee in its evaluation of a judicial nominee, but it will not preclude consideration of that nominee unless the Administration has not consulted with both home state senators prior to submitting the nomination to the Senate.”
A fourth option would be to follow the precedent set by Pennsylvania Sen. Arlen Specter who chaired the Judiciary Committee from 2005 to 2007 as a Republican, and who switched to the Democratic Party in 2009. Specter followed a bifurcated policy in which a negative or unreturned blue slip blocked the consideration of a district court nominee but not that of a circuit court nominee. Grassley has already said that home-state senators will get less deference on circuit court nominees, so he may adopt something similar to the Specter Rule.
Each of these options has their benefits and drawbacks. However, the Leahy “absolute veto” rule and, to a lesser extent, the Specter option depend on the goodwill of the minority party to prevent abuse and a resulting standstill in the nomination process.
If the early signs that Democrats plan to use the blue slip as tool of obstruction turn out to be accurate, then Chairman Grassley will be forced to adopt the Kennedy or Biden standards, neither of which allows the wholesale blocking of nominees. If Grassley chooses one of these two options, he can rest assured that Democrats have previously and unequivocally endorsed its use.
Christina Pesavento is a legal affairs fellow at the Committee for Justice, a nonprofit group that seeks to uphold the Constitution and support constitutionalist judges.