Senate should seek to retain its ‘blue slip’ tradition for judicial nominees

The “blue slip” process for judicial nominations—one of the Senate’s most obscure customs in a body known for its arcane rules and esoteric parliamentary practices—soon may be destined for the dustbin. Should the change happen, the blue slip process would join filibusters on Supreme Court nominations as one of severallongstanding Senate traditions to fall victim recently to the hyperpartisan political environment in Washington.

Ditching the blue slip process altogether, by either party, would be shortsighted and threaten one of the few avenues for executive consultation before a president selects a nominee.

The process is a form of senatorial courtesy. By tradition, judicial nominations to the federal bench do not advance unless the two home-state senators indicate their approval of the nominee, which is done by returning the blue nomination slip to the chair of the Senate Judiciary Committee. While not formally codified in the Senate Rules, the informal custom has been practiced since the early 1900s, though with varying degrees of adherence, depending on the views of the chair and Senate leaders.

{mosads}The purpose of this process is to encourage the president to reach out, often across party lines, to consult home-state senators pre-emptively concerning district or circuit court vacancies. The idea is to generate consensus, even moderation, on nominees more likely. Such deference to home-state senators allows for a small number of lawmakers to prohibit confirmation of objectionable nominees, and consequently grants significant leverage to just one or two senators.

Senate Republicans are increasingly advocating to do away with the blue slip process if and when Democrats use it as a means to obstruct President Donald Trump’s judicial nominees. Their logic is tough to criticize. If Democrats take advantage of the courtesy by objecting to many Trump nominees, and take no part in consultations with the White House to find acceptable nominees, then why keep the process at all? After all, there is a dire need to get more judges on the bench across the country.

Of course, it’s also useful to remember that Senate Republicans withheld their blue slips to keep many of President Barack Obama’s nominees from being confirmed. Unsurprisingly, Republicans’ views on the importance of adhering to the tradition have shifted as they migrated to the majority. Likewise, Democrats once lambasted the opposition for using the custom to prevent their president’s nominees from being seated. Now, they argue its use is their only means of preventing confirmation of justices hand-picked by ultraconservative groups. Both parties are truly to blame.

The blue slip process has worked before as a measure of genuine senatorial courtesy. It can work again. One option would be for the Judiciary Committee chair to follow precedent established in previous eras and weigh negative or unreturned blue slips as just one factor in the process, effectively allowing a nominee to move forward despite the formal objection of a home-state senator. Such an option would maintain much-valued consultation between the branches and safeguard the custom, rather than throwing it out altogether.

Moreover, if the process is eliminated, lawmakers would be wise to consider the likelihood that the opposing party will take even more extreme steps to expedite political objectives once they return to the majority. As we’ve recently learned, draconian measures beget draconian measures. Doing away with the filibuster on Supreme Court nominees—the so-called “nuclear option”—was once unthinkable. Going nuclear is now being discussed as an option to pass other Senate legislation, potentially making the upper chamber simply a majority body and effectively another House of Representatives.

Some observers argue reform of the process isn’t needed, but rather a return to a more respectful form of governing. In regards to the threat of going nuclear, Sen. Jeff Flake (R-Ariz) opined: “I wish that we would instead change the behavior of senators rather than change the rules of the Senate.” The same can be said for ditching the blue slip process.

It is the traditions, albeit mysterious and sometimes tough to explain, that make the Senate unique. The chamber slows the legislative process, sometimes to a grinding halt, much to the dismay of the majority. Progress in the Senate is slow, incremental even, and hard to come by. Compromises must be sought to advance legislation or confirm treaties and nominees. That is exactly what the founders intended.

Casey Burgat is a governance project fellow with the R Street Institute (@RSI).

The views expressed by contributors are their own and are not the views of The Hill.