People For the American Way

Correcting Misinformation on Blue Slips

News and Analysis

Kudos to Politico for publishing an article today on the extremely important topic of lower federal courts (that is, not the Supreme Court)—especially the circuit courts of appeal. Unfortunately, it appears they were given some misleading information that needs to be corrected.

This concerns “blue slips,” the little pieces of paper that home state senators use to signal their position on a judicial nomination. The Senate gives great deference to home state senators when considering judicial nominations. A positive blue slip signals that the senator has no objection to the Judiciary Committee’s holding a hearing. But without that positive blue slip from both home state senators, the chair has traditionally put the nomination on hold, not scheduling a hearing at all.

Democrat Patrick Leahy adhered strictly to this practice when he chaired the committee during George W. Bush’s last two years and Barack Obama’s first six. So did Republican Chuck Grassley during Obama’s last two years.

But the Politico article seems to accept the word of conservative judicial activist Carrie Severino that Democratic senators have been slow to return their blue slips:

[Michigan’s Democratic Senators] Peters and Stabenow each returned blue slips to the committee just last Friday after [Joan] Larsen was nominated in early May. The lag had prompted Severino’s group to shell out $140,000 in early July for ads in Michigan to pressure the two Senate Democrats to back the nominee.

The “lag?” What lag? There was no lag. Larsen was nominated on May 8, but it was only late June when Severino’s Judicial Crisis Network launched their well-funded ad campaign to pressure the Michigan senators to submit their blue slips, accusing them of “political games” and “partisan politics” for not already having done so. This was slightly more than 50 days after the nomination.

Compared to how long it took GOP senators to return their blue slips for President Obama’s nominees, 50 days would be downright speedy. As described in a July 31 PFAW edit memo, conservatives are demanding that Democrats submit blue slips much earlier for Trump nominees than was the case for Obama nominees. The JCN did not criticize Republican senators for excessive delays in returning blue slips for Obama nominees, even when it took years. Our edit memo provides a number of examples.

For circuit vacancies where blue slips from GOP senators were ultimately returned for a nominee to fill that vacancy, there was an average of 205 days between the president’s first nomination and the eventual hearing. [Nominations made before a state had any GOP senators are counted only for their renomination after the new senator took office.] That’s an average of nearly seven months. President Trump hasn’t even been in office that long!

Moreover, that figure actually understates the delay, because it only includes instances where the GOP senators eventually returned their blue slips approving of a hearing. But there were many instances when the blue slips were never returned for a vacancy, so it was still open at the end of the 114th Congress in January. Including those raises the average to 219 days. And even this leaves out the months and sometimes years the Obama White House spent in consultations with Republican home state senators before either making a nomination or choosing not to make one at all.

So any talk of a “lag” by Democratic senators is ludicrous.

Another problematic statement in the article was this:

The blue slip rule is a century-old tradition, though it has been ignored under previous administrations.

That makes it sound like it’s not uncommon for the chair of the committee to defy a home state senator’s request for there not to be a hearing. That is incorrect. In fact, Democrats have always respected GOP senators’ blue slip privileges, and a Democratic president’s nominees have never been confirmed without both blue slips being returned.

As noted above, Chairman Leahy made no exceptions to the rule. When the White House went from Bush to Obama, so that the rule could be used to block nominees of a Democratic president, Leahy remained consistent and respected Republican senators’ prerogatives 100 percent of the time. As noted in our edit memo, this led to a number of failed nominations.

Chairman Grassley similarly made no exceptions, at least while there was a Democrat in the White House. But once the issue became Republican-nominated judges, Grassley started talking about making exceptions. He has not done so yet. Should that change, the obvious partisanship and disrespect for his fellow senators would reveal a great deal about Chuck Grassley’s basic character.