Judicial 'Blue Slips' Give Single Senators Too Much Say

The filibuster for court nominees is gone. This custom can end too.

Let's get these hearings started.

Photographer: Eric Thayer/Getty Images

There’s a fight brewing on Capitol Hill over whether to put to rest the “blue slip” custom that allows senators to block judicial nominees who would have jurisdiction over their states. The intraparty fight, between Senate Majority Leader Mitch McConnell and Judiciary Committee Chairman Charles Grassley, poses a serious question that should be decided independent of party: Are the blue slips a good idea? Do they promote moderation in the federal courts, or are they an undemocratic relic of senatorial privilege that should go the way of the dodo?

The custom is named after the practice of sending blue slips of paper to home-state senators to be returned to the Judiciary Committee with a notation of approval or disapproval of the nominee.

The process goes back to 1917. Although it has taken different forms, it now amounts to a near-requirement that both home-state senators approve judicial nominees, even when they don’t belong to the nominating president’s party.

Right now, of course, Democrats love the blue slips and don’t want them abolished. With a Republican president and Republican Senate majority and no more filibuster for judicial nominees, the blue slips are almost the only tool left that the majority party can use to block judicial nominees it doesn’t like.

But like the filibuster, the blue slip custom shouldn’t be evaluated solely on the basis of current political necessity. Someday Democrats will once again control the presidency and the Senate.

Nor should the custom be analyzed primarily as a power struggle between McConnell and Grassley. Technically, it’s up to the Senate Judiciary Committee to decide whether to consider nominees, which means it’s within Grassley’s purview. But McConnell controls the Republican conference, which means if he cared enough and could get the votes, he could force his will on Grassley, on pain of losing the chairmanship.

The benefit of the blue slip custom is that, under the right circumstances, it could contribute to an occasional moderation of the president’s most extreme nominees.

For it to work, at least one of the state’s senators must belong to a party other than the president’s. When that occurs, the president must give serious consideration to that senator’s views. The blue slip, if used judiciously, can block “out of the mainstream” nominees, radicals from the right or the left.

The filibuster, of course, was a more effective and less random mechanism to achieve such moderation. Now that’s gone: The “nuclear option” ending its use was invoked by the Democrats in 2013 for most judicial nominees and by the Republicans this year for Supreme Court picks. The judicial nominee filibuster will not return until there shall be born a generation that remembereth not the name of Merrick Garland.

Arguably, some moderation is better than none. So the blue slip could perhaps be defended on the ground that the death of the filibuster makes it all the more important. It’s also a vestige of bipartisanship, otherwise not much in evidence in the Senate.

On the other side is the core problem with the blue slip: It’s basically arbitrary. Many senators use it to turn federal judgeships into their personal fiefdoms. According to a mildly unfair cliche that I admit to repeating to my students, a federal district judge is a law-firm partner whose best friend is a senator.

Worse, the blue slip process is wildly undemocratic -- worse even than the filibuster. Giving 41 senators the power to block a nominee violated the principle of majority rule in the Senate, to be sure. But giving one senator the power to do so is truly outrageous from a democratic perspective.

The filibuster could be justified -- barely -- as a mechanism of preserving the interests of the minority party. Indeed, the structure of the Senate itself, with two coming from each state regardless of size, is itself an undemocratic concession to protecting the interests of the minority who lived in small states when the Constitution was drafted in 1787. You might say that the protection of minority interests is in the Senate’s DNA.

Yet the blue slip custom exaggerates minority protection to the point of absurdity. Under it, one senator from one state can block the elected president from picking and the majority of the Senate from confirming the nominees they prefer.

That leaves bipartisanship as the last plausible justification. The disappearance of bipartisanship is to be lamented. But it seems a bit hypocritical to preserve this remnant in an area where individual senators are being gifted the capacity to horse-trade for their favorite judicial candidates.

An institution like the Senate needs customs to maintain itself. In politics, however, custom is only worth preserving when it contributes to, rather than detract from, our core values. The blue slips deserve to fade into history -- no matter which party is in charge.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

    To contact the author of this story:
    Noah Feldman at nfeldman7@bloomberg.net

    To contact the editor responsible for this story:
    Stacey Shick at sshick@bloomberg.net

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