The Senate has a number of characteristics that differentiate it from the House—practices designed to foster debate, encourage comity, and respect the prerogatives of each senator. The “blue slip” tradition for circuit and district court nominations is one such practice, one that both parties have frequently lauded in the past: The chairman will not process a nomination until both home state senators submit blue slips of paper stating that they approve of the committee’s considering the nominee (not necessarily that they support the nominee). It’s a way to ensure that the Senate does not surrender its power to exercise its “advise” authority in the constitutional mandate of “advise and consent.”
After Barack Obama’s election to the presidency in 2008, every Republican senator—including the current majority leader, Mitch McConnell— signed on to a letter vowing to oppose any judicial nominee who lacked support from a Republican home state senator. In other words, they insisted that both blue slips be submitted before doing anything on a nomination:
We hope your Administration will consult with us as it considers possible nominations to the federal courts from our states. Regretfully, if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee. Despite press reports that the Chairman of the Judiciary Committee now may be considering changing the Committee’s practice of observing senatorial courtesy, we, as a Conference, expect it to be observed, even-handedly and regardless of party affiliation. And we will act to preserve this principle and the rights of our colleagues if it is not. [Letter from 41 Republican Senators to President Obama, March 2, 2009]
Those press reports were inaccurate. Then-Chairman Patrick Leahy, a Democrat, followed the blue slip practice the entire time he was chairman, during the presidencies of both George W. Bush and Barack Obama. No matter how strongly he supported a nominee, no matter how badly a vacancy needed to be filled, no matter how long a nomination had been languishing, Chairman Leahy at no time allowed a hearing, let alone a vote, on any judicial nominee until he had the approval of both home state senators. He made no exceptions, even when a Nevada nominee was strongly supported by Harry Reid, then the Senate Majority Leader. When the Kansas senators withdrew their support for Tenth Circuit nominee Steve Six after the hearing and when the committee vote was already scheduled, Leahy respected their prerogatives and refused to hold the vote, killing the nomination despite his obvious frustration and disagreement with the two senators.
Chairman Chuck Grassley also made no exceptions when he became chairman, during the last two years of the Obama administration. In fact, the circuit court vacancy for which Amal Thapar was just confirmed only existed because Grassley respected the blue slip rule. President Obama nominated someone for that seat, and Mitch McConnell and Rand Paul withheld their blue slips, so Grassley took no action on the nomination. Two other circuit courts have longtime vacancies that exist only because no hearing was held for an Obama nominee who got a blue slip from only one senator, not both: the 3rd Circuit (PA) and the 7th Circuit (IN).
But now that the White House and Senate are controlled by the GOP, many conservatives are suddenly pressuring Grassley to modify the blue slip tradition: to hold committee hearings and votes—on circuit court nominees in particular—even without blue slips from both home state senators. Of course, an exceptions-when-convenient “modification” would really eliminate the practice. Either home state senators have a universally recognized prerogative, or they don’t.
While outside parties may not care, this is something that senators of both parties have recognized in the past. Indeed, Republicans in the Senate have made this point frequently and clearly:
When Chuck Grassley became chairman of the committee after the 2014 elections, he made a promise to Iowans in a local newspaper:
I also have consulted with [newly elected] U.S. Sen. Joni Ernst, whose support any potential nominee [from Iowa] will need in order to proceed after the president’s nomination. For nearly a century, the chairman of the Senate Judiciary Committee has brought nominees up for committee consideration only after both home-state senators have signed and returned what’s known as a “blue slip.” This tradition is designed to encourage outstanding nominees and consensus between the White House and home-state senators. Over the years, Judiciary Committee chairs of both parties have upheld a blue-slip process, including Sen. Patrick Leahy of Vermont, my immediate predecessor in chairing the committee, who steadfastly honored the tradition even as some in his own party called for its demise. I appreciate the value of the blue-slip process and also intend to honor it. [Des Moines Register op-ed:, April 14, 2015]
And when control of the White House went from Democratic to Republican, the Wall Street Journal reported that Grassley would not be changing the rules just because his party was in power:
Democrats still have some levers to pull in the Senate if they object to a lower-court nominee. When a president makes a judicial nomination, the Senate Judiciary Committee sends a form known as a “blue slip” to the senators from the nominee’s home state. If both senators return the slips, the chairman of the committee typically moves the nominee forward. If one or both withholds them, tradition dictates that the nomination languish. … Sen. Chuck Grassley (R., Iowa), chairman of the Senate Judiciary Committee, will continue to honor the blue-slip process, said Taylor Foy, a committee spokesman. [Wall Street Journal, Nov. 11, 2016]
In 2014, Orrin Hatch—the committee’s longest-serving Republican and its former chairman—fiercely defended the practice of requiring both home state senators’ approval before moving on a judicial nominee:
Weakening or eliminating the blue slip process would sweep aside the last remaining check on the president’s judicial appointment power. Anyone serious about the Senate’s constitutional “advice and consent” role knows how disastrous such a move would be.
…
I’m glad Chairman Leahy has preserved the blue slip process. It should stay that way. [Hatch op-ed in The Hill, April 11, 2014]
Texas Sen. John Cornyn, another Republican on the committee, recently explained to Politico why he supports the blue slip practice, acknowledging that it can be frustrating to the party in the White House:
[Cornyn], who has 11 district court vacancies in his home state of Texas, along with two empty appellate court seats, called the blue slip an “equal opportunity irritant.”
“When it’s an impediment, then people don’t like it. When it’s helpful, people like it,” Cornyn said. “What it does [is], it provokes a negotiation, which I don’t think is an altogether bad thing.” [Politico, May 8, 2017]
Lindsey Graham told the Associated Press in April of his hope that the committee would retain its bipartisan features in the Trump era:
Sen. Lindsey Graham, R-S.C., a committee member, says he thinks the future of the bipartisan process is “the real fight” going forward. He says he hope it doesn’t change.
“I think there’s a lot of desire to keep that power within the Senate,” he said. [ABC News, April 23, 2017]
And it’s not only the longtime senators, who remember a less contentious chamber, who have spoken out publicly in favor of keeping the blue slip tradition. The website of Nebraska’s Ben Sasse (also a committee member) explains the central role that home state senators play both before and after nomination. He and fellow Deb Fischer each has their own system for recommending district court nominees, while they work together on Eighth Circuit nominees from Nebraska. Either way:
After the White House sends a nomination to the Senate, the Senate Judiciary Committee will begin its confirmation process which, by longstanding precedent, requires the approval of both home-state senators. [Sasse press release, Feb. 13, 2017]
Chairman Grassley should resist any pressure he is getting to change the blue slip policy. It is integral to the unique nature of the Senate, to respecting each senator’s prerogatives, and—most importantly—to a federal judiciary that maintains its legitimacy in the eyes of the American people.