It is not yet clear whether the blue slip is headed for the dustbin of history. If Senate Majority Leader Mitch McConnell gets his way, senators will no longer be able to block a judicial nominee from their state by refusing to return their blue slip to the Judiciary Committee. But the Committee's chairman, Chuck Grassley, reminds us that it's ultimately his decision, and he is reluctant to do away with the blue slip entirely.
Keep in mind that Grassley is not limited to the binary choice of ending the blue slip policy or keeping it in full force. As CFJ legal affairs fellow Christina Pesavento explained in an op-ed in The Hill, there are a number of options in between....
Op-Ed Published in The Hill | Christina Pesavento | August 11, 2017
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.
Press Statement | Curt Levey | September 29, 2017
The following is the statement of Committee for Justice president Curt Levey on President Trumps' nomination of nine judicial candidates: four for the Fifth Circuit, three for U.S. District Court seats, and two for other federal courts:
Like President Trump's previous rounds of judicial nominations – starting with his selection of Neil Gorsuch for the Supreme Court – the nine nominees announced yesterday remind Americans of the wisdom of one of their foremost reasons for electing this president: his commitment to strengthening constitutionalism and the rule of law in the federal judiciary.
We urge Senate Democrats to put aside partisan politics long enough to swiftly confirm each of these nominees.
The nine nominees all have the qualities necessary to achieve President Trump's commitment to improving the judiciary: impressive intellects, stellar accomplishments in their legal careers, upstanding characters, and a demonstrated commitment to following the law where it leads, rather than construing the law in light of their personal policy preferences.
Put another way, all nine can be counted on to take a jurisprudentially conservative approach to the law – that is, an objective, textualist interpretation of the Constitution, statutes, and regulations – regardless of whether the outcome pleases various political constituencies.
In the case of two of the Fifth Circuit nominees – Texas Supreme Court Justice Don Willett and former Texas Solicitor General James Ho – I can add an additional reason to support their speedy confirmation, based on having known them personally for a long time.
I have only personally known a small number of attorneys whose intellect, legal reasoning, and character scream out "The federal judiciary needs people like this." Jim and Don are two of them.
The Daily Signal: "If you asked any conservative attorney in this town, they would put Noel in the top five legal minds,” said Curt Levey, president of the Committee for Justice ... Given the resistance to Trump in the federal courts, almost everything could be dealt a blow by a district court somewhere, it’s important to have someone with executive branch experience, and it’s more important than ever for not only the country but for this administration,” Levey told The Daily Signal..."
The Washington Times: Curt Levey, president of the Committee for Justice, said it has been the exception when the blue slip tradition hasn’t been followed during the past 10 to 15 years. He cited a period under Mr. Bush when Sen. Orrin G. Hatch, Utah Republican and then-chairman of the Judiciary Committee, said he didn’t always take the blue slips into account for nominees because Democrats were abusing the process. 'There’s always sort of this tension going on, and somehow they work it out and save the blue slip,' said Mr. Levey. 'I kind of suspect that’s going to happen again.' Mr. Levey said there is no hard and fast precedent on what qualifies as consultation.'If you seem like you’re sincerely getting input from the senators, I think that counts as consultation,' said Mr. Levey. 'I don’t think it’s fair to say there was no consultation just because a senator didn’t get their favorite...'"
The Washington Times: "Still, Committee for Justice President Curt Levey said Senate Democrats are likely to slow the confirmation process by exploiting debate time at a record level. He said Democrats also could try to defeat nominees “by abusing the blue-slip privileges granted to the two senators from each nominee’s home state.” “If Democrats go that extreme, Senate Judiciary Chairman Chuck Grassley [Iowa Republican] may be forced to curtail the 100-year-old blue-slip tradition,” he said. The blue slip is a tradition that allows senators from a nominee’s home state to block a nomination for virtually any reason. Mr. Levey noted that five of Mr. Trump ’ s first six expected nominees to federal appeals courts are younger than 50. 'The large number of judicial vacancies gives President Trump a historic opportunity to move the federal courts in the right direction — towards constitutionalism and away from judicial activism — in just four years,' Mr. Levey said. 'Fulfilling this opportunity will require a steady stream of judicial nominations from the White House and a brisk pace of hearings in the Senate Judiciary Committee....'"
The Huffington Post: "[O]rganizations...have been slamming Democratic senators over their questioning of Notre Dame Law Professor Amy Coney Barrett, who has been nominated by President Donald Trump to serve as a federal appeals court judge... Two years [prior to Chief Justice John Roberts' confirmation], the Committee for Justice ran an ad attacking senators who opposed the confirmation of appeals court nominee William Pryor, featuring a courthouse with a sign hanging from the door reading “Catholics Need Not Apply..."
[Interview] Washington Watch: "On 'Washington Watch with Tony Perkins' House Armed Services Committee member Rep. Doug Lamborn (R-Colo.) had an update on what's happening on Capitol Hill. Project Lead at the Center for Medical Progress, David Daleiden, joined Tony to highlight the contempt of court order issued against Daleiden's criminal defense attorneys. Also, President of the Committee for Justice, Curt Levey, discussed why President Trump's nominees are held up in the Senate..."