The Senate could be headed toward the loss of an important fixture in the judicial confirmation process—the blue slip—if partisan tensions over judicial nominees continue to grow in the months ahead. Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) may be forced to decide whether to alter a Senate practice that currently gives minority home state senators the power to delay or stop the nomination of judicial nominees from their states. The decision could have significant implications for President Donald Trump’s efforts to fill a historic number (roughly 150) of Article III judicial vacancies.

So What Is the Blue Slip?

Quite simply, the eponymous “blue slip” is a one-page form, written on blue Senate letterhead, about a judicial nominee by a senator from the state where the federal judicial nominee resides, reflecting the senator’s support or disapproval of the nominee. The blue slip originated 100 years ago in 1917 and has remained an obscure tradition of senatorial courtesy, honored in various ways over the past century within what some have called “the most exclusive club in America.”

As a tradition, not a Senate rule, the blue slip implicates the Senate’s constitutional responsibility to provide “advice and consent” on the president’s nomination of Article III judges. Typically upon receipt of a nomination from the president, the chairman of the Senate Judiciary Committee chairman sends the form to the two senators from the nominee’s home state, seeking their approval to move ahead with a hearing on the nominee. The home state senators can return the blue slip in support or opposition to the nomination, delay in returning it, or forever refrain from returning it. Over the past two decades, a home state senator’s non-return of a blue slip has blocked a hearing, essentially killing the nomination.

Both Republicans and Democrats have used the blue slip to delay or kill nominations. During the Obama administration, several federal appeals court nominees didn’t advance because Republican home-state senators wouldn’t return blue slips. Democrats are still incensed over the Republican delay that killed Obama’s nomination of Judge Merrick Garland to fill the Supreme Court vacancy created by Justice Antonin Scalia’s death in 2016.

No required criteria guide the non-return of a blue slip. In most instances, home state senators point to dissatisfaction with the nominees’ qualifications; in others, they may complain about a lack of consultation by the White House.

In September that combination of factors motivated Sen. Al Franken (D-Minn.) to withhold his blue slip over the nomination of Minnesota Supreme Court Justice David Stras to the Eighth Circuit Court of Appeals. Only days later, Oregon’s two Democratic senators, Ron Wyden and Jeff Merkley, announced their intent to withhold their blue slips in connection with the nomination of Assistant U.S. Attorney Ryan Bounds to the U.S. 9th Circuit Court of Appeals. The senators pointed to insufficient cooperation by the Trump administration with their judicial screening process.

Whither the Blue Slip?

Chairman Grassley warned earlier this summer that he would consider changes in the blue slip policy if it began to become abused. Grassley has several options. He could end the blue slip for circuit nominees since the president wields greater deference on circuit nominees than those at the district court level. He could limit the blue slip to the exclusive use of home state senators of the majority party. Or he could eliminate the blue slip entirely, a potentially irreversible course that could come back to haunt Senate Republicans whenever they inevitably return to minority status.

Grassley will be reminded of Senate Democrats’ misfortune when they eliminated the filibuster of district and circuit court nominees in November 2013 after a contentious battle over three Obama nominees to the D.C. Circuit Court of Appeals. Although Obama’s appointees were confirmed to the federal bench, Republicans reclaimed the Senate a year later and, in 2016, they additionally ended the filibuster of Supreme Court nominees, paving the way for the confirmation of Associate Justice Neil Gorsuch.

Bruce Moyer is government relations counsel for the FBA. He also serves as counsel to the National Association of Assistant U.S. Attorneys. © 2017 Bruce Moyer. 
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