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Blue slip (U.S. Senate)

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A Senate blue slip from 1917 for U.V. Whipple, a candidate for district judge for the southern district of Georgia, signed by Georgia Senator Thomas Hardwick, who wrote that "I object to this appointment—[Whipple] is personally offensive and objectionable to me, and I can not consent to the confirmation of the nominee."[1]

In the Senate, a blue slip is a slip on which the senators from the state of residence of a federal judicial nominee give an opinion on the nominee.

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Overview

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In the Senate, a blue slip is an opinion written by a senator from the state where a federal judicial nominee resides. Both senators from a nominee's state are sent a blue slip in which they may submit a favorable or unfavorable opinion of a nominee. They may also choose not to return a blue slip. The Senate Judiciary Committee takes blue slips into consideration when deciding whether or not to recommend that the Senate confirm a nominee.

History

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A report issued by the Congressional Research Service in 2003 defines six periods in the use of the blue slip by the Senate:[2]

  • From 1917 through 1955: The blue-slip policy allowed home-state senators to state their objections but committee action to move forward on a nomination. If a senator objected to his/her home-state nominee, the committee would report the nominee adversely to the Senate, where the contesting senator would have the option of stating his/her objections to the nominee before the Senate would vote on confirmation.
  • From 1956 through 1978: A single home-state senator could stop all committee action on a judicial nominee by either returning a negative blue slip or failing to return a blue slip to the committee. This originated when segregationist Senator James Eastland of Mississippi allowed nominations to be killed to prevent school integration.[3]
  • From 1979 to mid-1989: A home-state senator's failure to return a blue slip would not necessarily prevent committee action on a nominee.
  • From mid-1989 through June 5, 2001: In a public letter (1989) on the committee's blue-slip policy, the chairman wrote that one negative blue slip would be "a significant factor to be weighed" but would "not preclude consideration" of a nominee "unless the Administration has not consulted with both home state Senators." The committee would take no action, regardless of presidential consultation, if both home-state senators returned negative blue slips.
  • From June 6, 2001, to 2003: The chairman's blue-slip policy allowed movement on a judicial nominee only if both home-state senators returned positive blue slips to the committee. If one home-state senator returned a negative blue slip, no further action would be taken on the nominee.

Since 2003, blue slip policy has changed several more times, as follows:

  • 2003 to 2007: A return of a negative blue slip by one or both home-state senators does not prevent the committee from moving forward with the nomination — provided that the Administration has engaged in pre-nomination consultation with both of the home-state senators.[2][4]
  • 2007 to January 3, 2018: The chairman's blue-slip policy allowed movement on a judicial nominee only if both home-state senators returned positive blue slips to the committee. If one home-state senator returned a negative blue slip, no further action would be taken on the nominee.[4]
  • January 3, 2018, to present: The lack of two positive blue slips will not necessarily preclude a circuit-court nominee from receiving a hearing unless the White House failed to consult with home-state senators. Hearings are unlikely for district court nominees without two positive blue slips.[5][6]

In October 2017, Senate Majority Leader Mitch McConnell announced that he believed blue slips should not prevent committee action on a nominee.[7] In November 2017, the Chairman of the Senate Judiciary Committee, Chuck Grassley, announced that the committee would hold hearings for David Stras and Kyle Duncan. Stras's hearing was held up by Senator Al Franken's refusal to return his blue slip, while Duncan's hearing was held up by Senator John Neely Kennedy's indecision on his blue slip. Kennedy, however, consented to Duncan receiving a hearing.[8][9]

In February 2019, attorney Eric Miller was confirmed to serve on the Ninth Circuit Court of Appeals, despite the fact that neither of his two home-state senators (Patty Murray and Maria Cantwell, both of Washington) had returned blue slips for him.[10] He was the first federal judicial nominee to be confirmed without support from either of his home-state senators, although other nominees were similarly confirmed to the Courts of Appeals without blue slips later in 2019, including Paul Matey (Third Circuit, New Jersey), Joseph F. Bianco and Michael H. Park (both Second Circuit, New York), and Kenneth K. Lee, Daniel P. Collins, and Daniel Bress (all Ninth Circuit, California). By the end of Trump's tenure, 17 judges were appointed despite resistance from at least one senator of that state. In the Biden presidency, the Democrat-led Senate did not return to the blue slip, but only three appellate judges were confirmed with opposition.[11] In the closing months of the 118th Congress, multiple Democrats signaled a willingness to return to the policy before the next Congress convenes with some reluctant concurrence by senior Republicans.[12]

See also

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References

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  1. ^ Kratz, Jessie (2014-08-03). "The Origins of Senatorial Courtesy". Prologue: Pieces of History. US National Archives. Retrieved 2016-03-18.
  2. ^ a b Sollenberger, Mitchel A. "The History of the Blue Slip in the Senate Committee on the Judiciary, 1917-Present". Congressional Research Service. Retrieved 25 January 2021.
  3. ^ The Editorial Board (2023-02-06). "Opinion | How to Stop a Senator From Blocking a Federal Judge". The New York Times. ISSN 0362-4331. Retrieved 2023-02-07.
  4. ^ a b Rizzo, Salvador (21 February 2018). "Are Senate Republicans killing 'blue slip' for court nominees?". Retrieved 5 July 2018.
  5. ^ Grassley, Chuck (22 February 2018). "Chuck Grassley: Senate Democrats are trying to stall Trump's nominations by rewriting the history of 'blue slips'". Retrieved 5 July 2018.
  6. ^ LeVine, Marianne (February 17, 2021). "Senate Dems take a page from GOP in judicial nominee battles". POLITICO. Retrieved February 18, 2021.
  7. ^ Rowland, Geoffrey (2017-10-11). "Senate battle heats up over 'blue slips,' Trump court picks". The Hill. Retrieved 2017-10-11.
  8. ^ Demirjian, Karoun (2017-11-17). "Sen. Chuck Grassley schedules a hearing for contentious Trump judicial nominees". The Washington Post. Retrieved 2017-11-17.
  9. ^ Stole, Bryn (2017-11-14). "Sen. John Kennedy keeping mum on nomination of conservative Kyle Duncan to 5th Circuit judgeship". The Advocate. Retrieved 2017-11-17.
  10. ^ "'Damaging precedent': Conservative federal judge installed without consent of home-state senators". The Washington Post. 2019.
  11. ^ Tierney, Sneed (August 28, 2024). "Scale of Trump's appeals court overhaul unmatched by Biden, even as Democrats could approve more total judges". CNN Politics.
  12. ^ Jennifer, Haberkorn (May 15, 2024). "Durbin says he's open to reinstating rule that could slow judicial confirmations". Politico.
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  • "Judicial Nominations". U.S. Department of Justice. U.S. Department of Justice Office of Legal Policy. December 2021.
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