100 years of the Blue Slip courtesy

Nearly a century ago, Sen. Thomas Hardwick sent a blue sheet of paper to the chairman of the Senate Judiciary Committee claiming that a nominee from his home state of Georgia was “personally offensive and objectionable.” Nonetheless, the committee proceeded on the nomination and reported the nominee to the Senate floor. 

That blue sheet of paper was a part of a newly-adopted courtesy to get insights on federal court nominees from home-state senators in an era when such information was hard to come by. This courtesy, commonly known as the blue slip, was intended to serve as an advisory tool – a source of information for senators to consider when casting a vote on the Senate floor.

{mosads}Fast forward to today. Some of my Democratic colleagues are attempting to rewrite history, falsely claiming that the blue slip courtesy is meant to give a single home-state senator veto power over the president’s judicial nominations. 

But history begs to differ.

For the vast majority of the blue slip’s history, a negative or unreturned blue slip did not stop the Senate Judiciary Committee from holding a hearing and vote on a nominee. In fact, of my 18 predecessors as chairman of the committee, only two allowed home-state senators unilateral veto power through the blue slip. The first to do so, Sen. James Eastland (D-Miss.), reportedly adopted this policy to thwart school integration after the Supreme Court’s decision in Brown v. Board of Education.

A tool for Advice and Consultation

The treatment of blue slips as advisory is a bipartisan tradition. In 1978, Eastland’s successor, Sen. Ted Kennedy (D-Mass.), clarified that a negative or unreturned blue slip would not necessarily block Committee proceedings. Sen. Strom Thurmond (R-S.C.) continued this policy, as did Sens. Joe Biden (D-Del.) and Orrin Hatch (R-Utah). 

In a 1989 letter to President George H.W. Bush, Biden expressed his policy on the blue slip courtesy: 

The return of a negative blue slip will be a significant factor to be weighed by the committee in its evaluation of a judicial nominee, but it will not preclude consideration of that nominee unless the Administration has not consulted with both home state Senators prior to submitting the nomination to the Senate.

Consultation with the White House is something we senators should value and encourage. But we should not allow home-state senators to abuse this courtesy by attempting to block committee proceedings for political or ideological reasons.

Nuclear Fallout

Democratic senators’ recent calls for an ahistorical interpretation of the blue slip courtesy stem from a decision they made in 2013 to end the 60-vote filibuster for lower court nominees. This move, often referred to as the “nuclear option,” effectively silenced half of the Senate during confirmation votes. At the time, many Democratic senators argued it was unfair for a minority of senators to block nominees with majority support. 

But now that they are in the minority, Democrats are scrambling to cope with the fallout from their decision to deploy the nuclear option. Some of the strongest supporters of the nuclear option now argue that a single senator should be able to block a nominee before even receiving a hearing. 

Some Additional Context

As the minority continues its campaign to block President Trump’s nominees, some are looking to the blue slip as a way to halt judicial nominees before they are even considered in committee. To justify this move, they argue that few nominees have been confirmed since 1979 without support from both home state senators. But this talking point ignores the fact that nominees without two positive blue slips were often filibustered on the Senate floor after a committee hearing.

For example, in 2003, Chairman Hatch held a hearing for Carolyn Kuhl, a Ninth Circuit nominee from California. Sen. Dianne Feinstein (D-Calif.) returned her blue slip, assenting to a hearing, but Sen. Barbara Boxer (D-Calif.) did not. The committee nonetheless reported the nominee to the full Senate, where the Democrats filibustered her. Kuhl was never confirmed.

The minority also points to a letter signed by Republican senators at the beginning of the Obama administration explaining that senators expected to be consulted on judicial nominees from their home states. This letter merely supported continuation of the strict blue-slip policy adopted by Chairman Leahy (D-Vt.) during the Bush administration. It would have been unfair to allow President Obama to make judicial nominations without home-state senators’ approval when Chairman Leahy demanded such terms under President Bush. 

Finally, any suggestion that Republicans abused the blue slip under President Obama is simply untrue.  When Republicans were in the minority, Republican senators returned the blue slip for 25 out of 27 circuit court nominees. Republican senators did not block any circuit court nominees during the first two years of the Obama administration via the blue slip. Meanwhile, Democrats have already attempted to block three of President Trump’s circuit court nominees by not returning blue slips.