Comparing the current situation to the prevailing practice under President Clinton makes it clear that Republicans are attempting to change the rules governing their handling of federal court nominations. In analyzing this controversy, it is important to note that unlike the blockades of four years and more produced by Senate Republicans, not a single case of Democratic abuse of the blue slip policy has been suggested. At this point, Republicans have offered no good reason to change the rules, other than their desire to push through as many right-wing judicial nominees as quickly as possible while the Senate remains in their hands. As the New York Times explained on April 27:
[T]he blue slip policy [should not be abandoned] completely and give the Republicans carte blanche to ram though ideologically driven nominees who could reshape the federal judiciary for a generation to come…[J]udicious use of the blue slip policy [can help] to secure a balanced array of nominees that includes centrists along with conservatives…
Under the current circumstances - despite the brief period in which the blue slip policy was misused to create judicial gridlock - the policy is one of the few mechanisms that can encourage leaders of both political parties to reach consensus on nominees, as occurred in the early years of the Clinton administration. The public has much at stake in this debate. With one party effectively controlling the White House and the Senate, any mechanism that contributes to “checks and balances” helps to ensure against judicial appointments that reflect a narrow, partisan ideology.
In addition, there are ample signs that Democrats on the Judiciary Committee would use the blue slip policy with an appropriate degree of restraint. In a recent letter to President Bush, the nine Democrats on the committee proposed six guidelines to ensure a more productive relationship in deciding on federal court nominees. The guidelines made reasonable requests, for example, asking that the White House “give serious consideration to individuals proposed by as possible nominees” and that the administration “[c]onsult with home state senators and the Judiciary Committee … with enough time to allow senators to consider the potential nominee and provide a meaningful response to the administration before any formal clearance on the prospective nominee is initiated.”
In the absence of other mechanisms, the blue slip policy currently offers the kind of leverage that can bring both sides together and force consultation to happen - thus, increasing the odds that the process produces mainstream judges to serve on our federal courts, and assuring an uneasy public that it can have confidence in the process and in the judges it produces.