Blue Slips — Those Little Pieces Of Paper Nobody Outside Of Washington Knew About Until Recently

A discussion on the origin of the pro forma gesture marked today as tradition

Introduction

Last Wednesday, the U.S. Senate voted to confirm Joseph Bianco of New York as a judge for the United States Court of Appeals for the Second Circuit with a vote of 54–42. Bianco was the 38th appellate judge confirmed since President Trump was inaugurated. This confirmation has brought back into the center of conversation the once little known, little talked about and often misunderstood concept of Senate lore referred to as the “blue slip.” The lore says that you cannot confirm a judge unless both senators from where the judicial nominee resides first gives their blessing.

This topic has been discussed off and on by the media since 2017 when Senate Judiciary Committee Chairman Chuck Grassley (R-IA) scheduled a committee hearing for David Stras, a Trump nominee for the Eighth U.S. Circuit Court of Appeals without having first received a positive blue slip from Senator Al Franken of Minnesota. This was a departure of a practice that past Judiciary Chairman Patrick Leahy (D-VT) used which permitted a senator to effectively block a judicial nomination they opposed in their home state. Ranking Member Dianne Feinstein (D-CA) wrote a memo to reporters referring to blue slips as “a time-honored Senate process.”

Chairman Grassley’s decision to simply schedule a confirmation hearing in committee was met with fiery headlines such as Politico writing that Grassley ripped up a “century-old Senate tradition.” Chairman Grassley was accused of “eroding checks” as Vox put it in 2018, for considering judicial nominees without getting the blue slip back first. Following the Bianco vote, The Huffington Post asserted that Senate Majority Leader Mitch McConnell (R-KY) “broke from precedent again” and claimed that only three times in history this has happened — all of which were brought forward by Senator McConnell.

This post seeks to address two questions:

(1) Are Republicans breaking with tradition by considering judges without first receiving positive blue slips?

(2) Are blue slips a good thing — is this a practice that should be continued?

The Origin Of The Blue Slip

The first known blue slip In 1917 (National Archives, retrieved 5/12/19)

The U.S. Constitution in Article 2 Section 2 establishes that the president shall nominate judges of the Supreme Court “with the advice and consent of the Senate.” However, it was not until 1917 that we saw the practice of blue slips initiate.

A 2003 report from the Congressional Research Service outlined the history of blue slips. The report states that there is no known explanation for the creation of blue slips but that the first Judiciary Committee rule containing it was adopted in 1917 at the same time of the adoption of the cloture vote to limits filibusters. The report does not suggest a correlation between blue slips and the cloture vote other than stating that this was a period in which many institutional rules were being reexamined. The report found that in most cases, the blue slips were meant to be a pro forma gesture (a matter of politeness) to the home state senators. If a negative blue slip was returned the chairman of the Judiciary Committee had the option to (1) stop the proceeding of the nomination as a senatorial courtesy, (2) move forward but with caution due to the added weight of the unfavorable review or (3) proceed anyway.

To the best understanding of the Congressional Research Service, the blue slip was a “courtesy of the Senate” which was “customary” but “not always adhered to.” A senator was granted the courtesy of submitting a blue slip with a negative response if he found the nominee to be “personally obnoxious or personally objectionable to him.” The American Congressional Dictionary defined senatorial courtesy as:

(Congressional Research Service, 10/22/03)

The Congressional Research Service reported that it was not until Chairman James Eastland (D-MS) in 1956 that a rule was implemented allowing a single senator the power to stop all committee action on a nomination. The practice was abandoned in 1979 By Senator Ted Kennedy (D-MA) and not implemented again until Senator Patrick Leahy (D-VT) in 2001.

A review conducted by the Ohio State University shows that since its first known use in 1917, only 2 of the 21 judiciary committee chairman prior to Chuck Grassley permitted a home state senator the absolute privilege of blocking appellate court nominees via a blue slip.

(Ohio State University, retrieved 5/12/19)

It is reasonable to conclude based on the findings of the Congressional Research Service and a review by the Ohio State University that the blue slip was not intended to be a veto and was not practiced as a veto for most of its history.

A Discussion of Context

I don’t think it is a coincidence that there were many changes to the rules and customs in the U.S. Senate on or around the year 1917 — rules such as blue slips and the first modern usage of the cloture vote. It was only four years earlier that the U.S. Constitution was amended to mandate that senators can only be elected through direct democratic elections. The days of state legislature backroom deals were over and senators had to appeal to voters directly. Such a drastic change to the methodology of how senators were selected had obvious electoral ramifications of the audience incumbents had to appeal to and no doubt changed the composition of who was elected to serve in the Senate.

Were Blue Slips Really A Tradition?

Today, many media outlets have reflexively referred to blue slips as tradition. Democrats have been venting frustration over a perceived loss of control over the judicial process and presidential candidates have been using this as a rallying cry claiming that Republicans have broken tradition.

As discussed above, there is a lot of nuance to that tradition if it can really be called that at all — most chairmen considered blue slips to be a proceed with caution signal and not a stop sign. Blue slips were a pro forma courtesy extended to senators in a time in which its members recently lost their electoral connection to state legislators. It would be convenient to have measures that senators could use to show their worth back home. Providing an up or down approval on home state judges was one way a senator could demonstrate their influence in Washington to their home-state interests.

Senatorial courtesy was not converted into a strictly enforced rule until 1956 during the chairmanship of James Eastland (D-MS), a segregationist who was described by the New York Times as a “leading Senate foe of integration.” Think Progress wrote a piece in 2014 outlining the use of blue slips as a tactic used by segregationists to keep civil rights-oriented judges off of the bench. Think Progress quotes Villanova Law Professor Tuan Samahon who wrote that “[w]hen segregationist ‘Dixiecrat’ Senator John Eastland chaired the Judiciary Committee, he endowed the blue slip with veto power to, among other things, keep Mississippi’s federal judicial bench free of sympathizers with Brown v. Board of Education.” Senator Ted Kennedy discontinued the practice after taking over for Eastland as Senate Judiciary Committee Chairman in 1979.

Are Blue Slips A Good Thing?

Blue slips in itself can be a good thing. It is a mechanism that allows a senator to raise an objection to an appointee that the senator “finds personally objectionable.” It also is a tool that can be used to promote federalism — allowing home state senators a larger say in who will be presiding over cases that involve the citizens’ in the states that they are representing. It is important for leadership to respect the opinions of the senators who are trying to look out for what is in the best interest of their constituents.

However, turning blue slips into a hard and fast rule puts the power of veto of a judicial nomination in the hands of a single senator. This has proven to be counterproductive and historically a very troublesome practice. Only two Judiciary Committee chairmen have made the return of a positive blue slip a requirement — Senator Eastland used it to block civil rights progress in the south and in Senator Leahy’s time it was used to block the nominations of opposition party presidents wholesale.

It may be possible that Senator Leahy’s requirement fueled the partisan fervor over the nomination process instead of helping to calm it. His policy on blue slips was used to stop debate, not encourage it. If there was less of an effort to block nominations over the last two decades than President Trump may not have had such a large cache of vacancies to fill and we may not be talking about this right now.

It has also been asserted by opponents of President Trump’s judicial nominations that moving forward on a judge without the return of a positive blue slip was eroding checks and balances. I argue that it is an erosion of checks and balances to permit a single legislator to veto a judicial nomination of a president seeking confirmation of the senate as a whole.

I conclude that we should take blue slips seriously and use them as a moment to give the microphone to the objecting senator to explain him/herself but without a compelling reason it should be considered a flashing yellow light instead of a red light.