Nov. 16, 2017
The role of the blue slip
Since the current focus in Washington is on the nomination of Neil Gorsuch to the U.S. Supreme Court, it is easy to overlook the roughly 111 Article III vacancies on the lower federal courts, including the four that exist currently on the 9th Circuit.
This column originally published Feb. 14, 2017. The Daily Journal is republishing due to U.S. Sen. Chuck Grassley's recent announcement that he would not be observing the Senate's traditional "blue slip" policy for some judicial nominees.
Since the current focus in Washington is on the nomination of Neil Gorsuch to be an associate justice of the U.S. Supreme Court, it is easy to overlook the roughly 111 Article III vacancies on the lower federal courts, including the four that exist currently on the 9th U.S. Circuit Court of Appeals. Nominees to these Article III positions require Senate confirmation. But since Senate democrats triggered the so-called "nuclear option" in 2013, a simple majority of the Senate can close debate and approve individuals for these judgeships, as opposed to the 60 vote majority currently required for nominees to the U.S. Supreme Court. As a result, the president now enjoys the greatest freedom in decades to fill slots within the federal judiciary. One of the few remaining procedural devices that can actually defeat a judicial nominee is the Senate Judiciary Committee's so-called "blue-slip rule."
This is how it works. When the president nominates an individual to a U.S. district court or court of appeal, the Senate Judiciary Committee sends a letter on light blue paper to the two home-state senators (regardless of party) asking them to take a position on the nomination. The senators check off the appropriate box - either approve or disapprove - and the blue sheet of paper is returned to the staff of the Judiciary Committee. A negative blue slip (or the failure to return a blue slip) typically dooms a nomination, affording home-state senators a de facto veto over judicial nominees to seats within their state.
According to the Congressional Research Service (CRS), the procedure is not part of the Senate Judiciary Committee's formal rules; rather, it is an informal custom that arose out of the Senate's tradition of "senatorial courtesy." Given this informality, the impact of a negative blue slip - and indeed, the decision whether to honor the blue-slip rule at all - is left entirely up to the chair of the Senate Judiciary Committee. The practice nonetheless has been honored continuously in some form since 1917.
During its first 40 years, according to CRS, a negative blue slip merely obliged the Senate Judiciary Committee to report the nominee unfavorably to the full Senate. The objecting senator could then voice his grievance on the floor prior to any vote on confirmation, but he could not block the nominee.
That changed between 1956 and 1978, when Sen. James O. Eastland, D-Miss., became the chair of the Senate Judiciary Committee. During his tenure, if a home-state senator failed to return a blue slip or returned a negative blue slip, the committee would take no further action on the nomination.
Sen. Edward Kennedy, D-Mass., chaired the committee for only one Congress, but he used that opportunity to make changes to the blue-slip rule. Between 1979 and 1981, if a home-state senator failed to return a blue slip, Kennedy nonetheless would permit the committee to vote on whether to proceed with a hearing on the nomination. Even a negative blue slip did not stop the committee from considering the nomination entirely. For instance, Kennedy held a hearing on the nomination of James E. Sheffield to the district court in eastern Virginia over the objection of Virginia Sen. Harry F. Byrd Jr.
Sen. Strom Thurmond, R-S.C., took the reins from 1981 to 1987. He altered the blue-slip policy slightly. On his watch, the failure to return a blue slip did not prevent the consideration of a nomination, but a negative blue slip from a home-state senator operated to defeat the nomination. In practice, however, Thurmond did not always enforce his stated blue-slip policy consistently. For example, he held a hearing on the nomination of John P. Vukasin Jr. to serve on the district court in northern California, even though California Sen. Alan Cranston had returned a negative blue slip to the Committee.
Then-Sen. Joe Biden, D-Del., chaired the committee from 1987 to 1995. During his tenure, a negative blue slip was a "significant factor" to be weighed when evaluating a nominee. It did not, however, preclude consideration of a nomination unless the president had failed to consult both home-state senators prior to submitting the nomination. Biden's policy was tested in 1989 when Vaughn Walker was nominated to be a district judge in northern California. One home-state senator, Pete Wilson, supported the nomination, but the other, Alan Cranston, returned a negative blue slip. Cranston's opposition had the effect of delaying the nomination, but the committee ultimately approved Walker on an 11-2 vote. Walker was then confirmed by the full Senate on a voice vote.
Sen. Orrin Hatch, R-Utah, chaired the committee from 1995 to 2001 and again from 2003 to 2005. His blue-slip policy largely followed Biden's. A negative blue slip did not automatically preclude the committee's consideration of a nominee, but it would do so if the president had failed to consult the two home-state senators in good faith prior to making the nomination.
Sen. Patrick Leahy, D-Vt., chaired the committee from 2001 to 2003 and again from 2007 to 2015. His blue-slip policy was rigid, like Eastland's - he did not permit the committee to consider a nomination unless both home-state senators affirmatively returned positive blue slips. Leahy also arranged with the ranking member, Hatch, to make the blue slips publicly available on a website maintained by the Department of Justice's Office of Legal Policy. Unfortunately, the use of that website seems to have fallen out of favor in recent years.
Today, Sen. Charles Grassley, R-Iowa, chairs the Senate Judiciary Committee. He recently wrote that "[f]or 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' ... I appreciate the value of the blue-slip process and also intend to honor it." Grassley appears to be applying the version of the blue-slip rule that was in place under Leahy. In other words, the return of a negative blue slip by one or both home-state senators currently prevents a nomination from being considered further by the committee.
One other important feature of the rule relates to the treatment of circuit court nominations. The committee gives blue slips only to the senators of the state where the predecessor judge was seated. This tradition stems from the practice of reserving circuit court positions for each of the states, but it has not always been implemented without controversy. For instance, the 9th Circuit seat currently occupied by Judge John B. Owens was held previously by Judge Stephen S. Trott. Trott had served as the U.S. Attorney for the Central District of California and was nominated to fill the seat of another Californian, Judge Joseph Sneed. Trott, however, chose to establish his 9th Circuit chambers in the state of Idaho, leading to some confusion upon his taking senior status. Specifically, it was not immediately clear whether the blue slips belonged to the senators from Idaho or the senators from California. The dispute kept the seat open for the next decade, until Chairman Leahy simply bypassed the Idaho senators and gave the blue slips to the California senators.
The committee does not keep statistics on how often the blue-slip rule has barred a nominee, but there were a number of reported examples during the Obama administration. For instance, the absence of Republican blue slips blocked nominees for the 3rd Circuit, 6th Circuit, 7th Circuit and the 11th Circuit.
If Grassley continues to honor the blue-slip rule, the Arizona, California, Hawaii and Oregon senators will each have significant influence on the selection of the individuals who will be nominated to fill the vacancies on the 9th Circuit. In its current incarnation, the blue-slip rule affords them a de facto veto over anyone that President Donald Trump nominates to judgeships within their respective states, rendering the need for pre-nomination consultation with home-state senators particularly important. As history suggests, however, the blue-slip rule could transform in an instant. The rule's character and existence fall within the discretion of the chair of the Senate Judiciary Committee. And, in this tumultuous political environment, few of the Senate's traditions appear to be immune from change.