In reading some recent criticisms of the Senate Judiciary Committee, you might think democracy is an obstacle America must overcome, rather than a cornerstone of our country. Case in point: the blue slip.
The blue slip process allows elected senators a say in which district court nominees can serve as judges for their constituents. But some critics are calling for the Judiciary Committee (of which I am a member) to kill this democratic safeguard. If a nominee doesn’t earn blue slips signed by both senators who represent the state, the Judiciary Committee will not begin the confirmation process, effectively blocking the president’s nominee.
Those leading the calls to abolish blue slips are upset because Republican senators have indeed blocked certain nominees in their home states from sitting on the federal bench. One former senator said my Democratic colleagues were “chumps” for allowing this to happen because the majority could choose to scrap the blue slip process and ram through as many of President Biden’s nominees as they please. If short-term political victories are the only thing at stake here, maybe he’s right.
But the blue slip isn’t about dunking on the opposition. The blue slip is one of the only ways that citizens have a say — through their elected senators — in who gets to call the legal balls and strikes in their communities.
District court judges play a unique role in our court system. While judges in the appeals courts consider issues of law, the district court judges determine the facts of the case — either directly or by overseeing the jury process. Trust in our judicial system depends on these judges’ being highly qualified. That means knowing legal procedure and constitutional rights inside and out. These judges must also have the appropriate judicial temperament to ensure every citizen receives a fair trial. Republican and Democratic senators alike should be loath to leave this responsibility to unelected bureaucrats in the White House Counsel’s Office who don’t know or understand the people we represent.
While I believe my colleagues on both sides of the aisle take the responsibility of confirmation seriously, the majority party can get tunnel vision when trying to rush through the president’s nominees. I’ve served during Republican and Democrat White Houses, and I know that presidents from both parties have nominated some duds. The stakes for green-lighting a questionable candidate may seem low, but bad judges have real consequences. No one wants to find themself fighting for their freedom before a judge who thinks the U.S. Constitution is the name of a ship.
Senators can’t afford to overlook unqualified nominees because we are accountable first and foremost to the people of our states — the same people who suffer at the hands of biased or untalented appointees. If a bad judge lands on a district court in Louisiana, that judge can oversee a lifetime appointment’s worth of injustices. And that can do irreparable damage to the people who sent me to be their voice.
Article II of our Constitution gives the people a say in the nomination process through the senators they elect. The blue slip is a significant part of the electorate’s agency. Today, some would prefer to silence people from minority states for the sake of expedience. They claim the blue slip process leads only to obstruction. But that is demonstrably untrue, and those detractors forget that today’s majority often becomes tomorrow’s minority.
I’ve worked closely with Judiciary Chairman Dick Durbin (D-Ill.) and this White House to help select qualified judges committed to protecting the rights of everyone in Louisiana. Most recently, I returned a blue slip for Mr. Darrel Papillion, a lawyer’s lawyer who knows the law and will work hard to preserve the trust Louisianians have in our judicial system. On Thursday, he sailed through the Judiciary Committee with a bipartisan vote of 15-6. Republicans have also returned blue slips for many other district court nominees in Iowa, Pennsylvania, and Ohio.
And before Papillion, President Biden nominated Ms. Dana Douglas to serve on the Fifth Circuit Court of Appeals. She earned both blue slips from Louisiana’s senators, which helped her win 15 Republican confirmation votes, even though blue slips are advisory for appellate court nominees. My Republican colleagues in Texas and Indiana have worked with the White House to nominate two other circuit court nominees from their states, as well.
The blue slip process encourages bipartisan cooperation. Our deference to the people of our respective states forces any White House to prioritize the qualifications and judicial temperament of nominees rather than bending the knee to activists or privileging people with political connections. The blue slip process makes our court system fairer and stronger. And that’s good for our democracy.
I’d ask critics of the Judiciary Committee to consider whether sacrificing the benefits that blue slips is worth short-term political victories — because majorities don’t last forever. The “chumps” of today may be the heroes of tomorrow. If Democrats hope to influence the judiciary in their states during the next Republican administration, they should respect the blue slip for our district court seats.
Kennedy is ranking member on the Senate Judiciary Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights.