The Senate, The Courts and the Blue Slip

The Ground Rules During the 1990s

During the Clinton administration, the White House made significant efforts to consult with senators of both parties prior to nominating judges. With respect to nominees for federal district courts, senators or other elected officials submitted specific recommendations to the White House. In some states represented by both a Democratic and Republican senator, the two senators agreed to divide responsibility for suggesting nominees. In other instances, the Clinton administration received feedback and suggestions directly from Republican and Democratic senators. For example, Senators Orrin Hatch and Trent Lott each suggested candidates for district court seats in their home states; Hatch pushed strongly for the nomination of Ted Stewart in Utah, and Lott recommended Allen Pepper in Mississippi. Despite concerns expressed by civil rights and environmental groups, both Stewart and Pepper were nominated by President Clinton and quickly confirmed.

Genuine consultation also took place on appeals court nominations. Proposed Clinton administration selections were routinely discussed with senators of both parties, and nominations were sometimes delayed for several months as a result. Press reports indicated that President Clinton consulted with Senator Orrin Hatch, both before and after he assumed control of the Senate Judiciary Committee, prior to the Supreme Court nominations of Ruth Bader Ginsburg and Stephen Breyer. In at least one instance, President Clinton nominated an appellate court judge recommended by a Republican Senator, despite objections from progressive groups. This occurred in 1999 when President Clinton accepted the recommendation of Senator Slade Gorton and nominated Barbara Durham for a seat on the Ninth Circuit, although health reasons later led to the nomination's withdrawal.

Senate Republicans also had significant influence after Clinton judicial nominees were selected. However, like other Congressional procedures, the blue slip policy can be-and has been-misused. After he assumed control of the Senate Judiciary Committee in the mid-1990s, Senator Hatch began to rigorously enforce a blue slip policy under which nominations could not move forward without the consent of both home state Senators. In 1998, this policy was made explicit on the blue slips themselves, which stated that “[n]o further proceedings on this nominee will be scheduled until both blue slips have been returned by the nominee’s home state senators.” Suddenly, a policy that had helped to force consultation and consensus was transformed into a vehicle for partisan obstruction.

Specific information on whether and when Senators returned blue slips is not made public. Nevertheless, it is clear that the strict blue slip policy effectively stopped any and all action on a number of Clinton nominees. For example, President Clinton nominated Helene White from Michigan for a seat on the Sixth Circuit Court of Appeals on January 7, 1997. Then-Senator Spencer Abraham of Michigan reportedly failed to return his blue slip for more than three years. During that time, the Judiciary Committee took no action whatsoever on the nomination. By the time Abraham was finally pressured to return the blue slip late in 2000, Hatch had indicated that no further action would be taken on appeals court nominees that year. President Clinton renominated White in 2001, but President Bush withdrew the nomination in March without any action by the Senate. As a result, the Hatch-led Judiciary Committee took no action on the White nomination, not even scheduling a hearing, for more than four years.

Senator Jesse Helms used his blue slip to block any action on all African-American nominees to the Fourth Circuit for more than four years. No African-American has ever been confirmed for a seat on the Fourth Circuit court of appeals, which covers North and South Carolina and several other southern states. Starting in 1995, President Clinton submitted several African-American nominees to that court from North Carolina, including James Beaty and James Wynn. Reportedly as a result of Helms' failure to return either of his blue slips, however, neither of these nominees even received a hearing from the Judiciary Committee. Not until President Clinton's 2000 recess appointment of Roger Gregory, whose nomination also failed to receive a hearing, has an African-American ever served on the Fourth Circuit.

Other Clinton appeals court nominees, mostly women or minorities, were reportedly blocked by home state Republican senators withholding their blue slips. Examples included: Jorge Rangel and Enrique Moreno of Texas, and Kathleen McCree Lewis of Michigan. Other appeals court nominees, such as Barry Goode of California, Elena Kagan of D.C., and Allen Snyder of Maryland, were blocked even when there was no home state Republican senator to object. Overall, although not a single Clinton-nominated appeals judge was voted down by the Senate, blue slip and related delays and blockades meant that the Senate approved only 61% of President Clinton's appellate court nominees, compared with 87% of those nominated by President Reagan. In 1999-2000, 19 out of 32 Clinton appeals court nominees — roughly 60% — were blocked from receiving a vote.

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