Yesterday I wrote about President Trump’s many court vacancies – and the vast promise they hold for our courts.
Democrats previously invoked the Nuclear Option – a process that allows a simple majority vote in place of a three-fifths vote on presidential nominations for federal court judgeships. That rule has since been expanded by Republicans to include Supreme Court Justices. And Republicans hold a slight majority at 52 to 48 in the Senate.
All good, right?
Well, there is one hitch to the process – and it has to do with an archaic Senate process – really a tradition – and two small slips of blue paper. Allow me to explain.
A “Blue Slip” is a nothing more than a piece of paper that is sent to both Senators in the state where the nominated judge will be ruling – if confirmed. If the Senator has no objections and returns the paper with an indication of approval, the nomination proceeds with hearings. If the Senator either does not return the “Blue Slip” or returns it with an indication of disapproval – the nomination might not move forward at all.
I say “might” because the Blue Slip process is not a law but more of a tradition – one that dates back to 1917. The impact of “Blue Slips” has varied over the years. Here are is the manner in which “Blue Slips” have been treated by the Senate according to a report by Congressional Research:
From 1917 through 1955: The blue-slip policy allowed home-state Senators to state their objections but committee action to move forward on a nomination. If a Senator objected to his/her home-state nominee, the committee would report the nominee adversely to the Senate, where the contesting Senator would have the option of stating his/her objections to the nominee before the Senate would vote on confirmation.
From 1956 through 1978: A single home-state Senator could stop all committee action on a judicial nominee by either returning a negative blue slip or failing to return a blue slip to the committee.
From 1979 to mid-1989: A home-state Senator’s failure to return a blue slip would not necessarily prevent committee action on a nominee.
From mid-1989 through June 5, 2001: In a public letter (1989) on the committee’s blue-slip policy, the chairman wrote that one negative blue slip would be “a significant factor to be weighed” but would “not preclude consideration” of a nominee “unless the Administration has not consulted with both home state Senators.” The committee would take no action, regardless of presidential consultation, if both home-state Senators returned negative blue slips.
From June 6, 2001, to 2003: The chairman’s blue-slip policy allowed movement on a judicial nominee only if both home-state Senators returned positive blue slips to the committee. If one home state Senator returned a negative blue slip, no further action would be taken on the nominee.
2003: A return of a negative blue slip by one or both home-state Senators does not prevent the committee from moving forward with the nomination — provided that the Administration has engaged in pre-nomination consultation with both of the home-state Senators.
What this means in practice is that in states with at least one Democratic Senator (currently 30), Democrats can effectively block President trump’s Judicial Nominations in those states – if Senate Leaders – most specifically the Judiciary Chairman – agree to abide by the tradition. In full disclosure, I have seen numerous sources cite only those states having two Democratic Senators as being at risk (19 states). However, everything I have found regarding actual “Blue Slip” procedure indicates only one Senator (11 additional states) – one negative “Blue Slip” – can stop the nomination process – if the tradition is honored. A map with Senate listing by state and party representation may be found here. Again, this means that President Trump could find his judicial nominations blocked – or at least be forced into negotiations – in 30 states.
The matter is further muddied by the varied historical treatment of the tradition. In some cases, greater weight has been attached to negative “Blue Slip” responses when the Senator was a member of the President’s party versus negative responses from Senators of the opposition party. However, in the strictest interpretation, any one Senator who returns a negatively affirmed “Blue Slip” or simply does not return one at all is enough to stall – or even stop – confirmation hearings from being held for a specific judicial nomination in that Senator’s state.
And it’s a tool that’s been utilized by both parties. Republicans employed the process to help block or at least slow-crawl Obama judicial nominations. And then Democratic Judiciary Chairman Patrick Leahy upheld the tradition in the face of some pressure to abandon the Blue Slip process from his own Democratic Party.
Again, the “Blue Slip” Rule is really not even a rule – it is a tradition – a Senatorial Courtesy that has no grounding in the Constitution. As such it ought not be honored in my view. But I can understand why Senators – and states – might desire such a tool. The Blue Slip Rule allows state Senators and Governors to have a voice in the type and temperament of judges being appointed to their states. And tools always cut both ways. As Republican Senate Majority Whip John Cornyn noted, the “Blue Slip” is an “equal opportunity irritant. When it’s an impediment, then people don’t like it. When it’s helpful, people like it. What it does [is], it provokes a negotiation, which I don’t think is an altogether bad thing.”
The decision on how to interpret, use or abandon the Blue Slip process falls on the Judiciary Chairman – in this case Republican Chuck Grassley. Grassley has praised the custom in the past, and his spokesman told The Wall Street Journal in November 2016 that Grassley would honor the blue slip process. It remains to be seen if Senator Grassley will maintain this position. Senator Grassley – if he was so inclined – could choose to do away with the process entirely – or he could choose to enforce a requirement that requires both Senators from a given state to vote negatively as opposed to just one Senator effectively having a veto under current strict precedent. It is entirely up to him.
Quite a measure of judicial power residing in the hands of one man. If Grassley does away with the process, President Trump can appoint whomever he wants with impunity. If he leaves the process unaltered, any Senator from 30 different states could halt the nomination process for a judge in that state. If Grassley alters the process to require two negative responses – as has occurred in the past – only 19 states (having two Democratic Senators) would provide roadblocks to judicial nominations – in those states.
I stated earlier that I am not in favor of the Blue Slip process. While my views may be tainted by our urgent need for judicial reform – the appointment of judges who honor and respect our Constitution – my basis lies in the Constitution itself. Nowhere in the Constitution does a provision for this process exist. It is simply one in the myriad of Senatorial arcane rules and traditions. And it is a direct result of this tradition that such great power for judicial transformation now lies in the hands of Senator Grassley.
Democrats will cry foul if the Blue Slip process is killed – and with some justification given Democratic Senator Leahy’s defense of the practice when he chaired the Judicial Committee. But this tradition has no given right stemming from the Constitution. None. And for that reason alone, it should be abandoned.
The time for Senatorial Courtesy has long passed. Our Constitution is in dire need of protection. And our Judicial System is in dire need of an overhaul. 129 conservative judges with more to come – await Presidential appointment.
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