Editor’s Note: This piece has been amended since its initial publication.
The time when the Senate’s treatment of Judge Merrick Garland was the subject of intense national debate seems a distant memory, but it was only a year ago. President Obama had nominated Garland to the U.S. Supreme Court, and the Republican majority in the upper chamber refused to give him a hearing, much less a vote. That provoked howls of outrage from Democrats. Now, the shoe is on the other foot: Those same Democrats are seeking to deny judicial nominees the courtesy of a hearing, and their Republican colleagues are crying foul.
Several Democrats are employing what are known as “blue slips” in order to block nominees to federal court vacancies in their home states. The blue slip is exactly what it sounds like: a blue piece of paper a home-state senator submits to the Judiciary Committee detailing their opinion of a given nominee. Though these blue slips are not quite as venerable a tradition as some seem to think, they have at various times in the history of the Senate been enough to sink a nomination.
While political deals have always been part of the confirmation process, according to the Congressional Research Service, the practice of blue slips goes back only to 1917. Until 1955, if a home-state senator submitted a negative blue slip, it merely meant that the Judiciary Committee had to report the nomination unfavorably to the full Senate. That year, new Senate majority leader Lyndon Johnson turned the practice into an absolute veto, allowing senators to deny a home-state nominee a hearing either by submitting a negative blue slip or declining to submit any blue slip at all. Nowadays, a negative blue slip won’t prevent the Judiciary Committee from moving forward on a nominee, provided the administration consults with both home-state senators before announcing his nomination, but considerable deference is still paid to it. And senators such as Al Franken and Ron Wyden are speaking as if their objections to Trump’s nominees ought to be the end of the story for the judges they don’t like.
Thanks to Donald Trump’s unexpected victory in the presidential election, the GOP refusal to consider Garland’s nomination paid off, and they were able to confirm Neil Gorsuch to the Supreme Court instead. But in order to confirm Gorsuch, they had to end the use of the filibuster on Supreme Court nominations, given the thinness of their majority. And now, they may decide that it’s easiest to go nuclear and end the blue slip, confirming Trump’s lower-court nominees rather than preserving the tradition.
In its defense, the blue slip is a bow in the direction of both bipartisanship and senatorial courtesy. It forces presidents to reach across party lines to create consensus picks for federal district courts and appellate benches, and it allows people from the state where a nominee will serve to exercise influence over who that nominee is. It also harkens back to a bygone era of American politics in which the Senate truly was the nation’s most exclusive club, and its members treated one other as friends and colleagues even if they were from different parties. The Senate considered any objection from one of its members enough to speak for the entire club.
But while both of those considerations may have had some value in the past, they are irrelevant to the culture of the Senate as it is presently constituted. The simple fact is that bipartisanship is no longer possible in a Congress where moderates in both parties are virtually an extinct species. The spirit of cooperation and bipartisanship may occasionally pop up, but it doesn’t do so often.
With each succeeding administration, the notion that blue slips have anything to do with a nominee’s qualifications rather than partisan concerns seems more and more laughable.
That is especially the case with respect to the federal courts. Both Republicans and Democrats understand that the most important legacy any president can have is to pack the courts with judges who conform to their ideological preferences. That meant Presidents Clinton and Obama appointed as many liberals as they could during their terms in office and the Bushes appointed as many conservatives as they could. Trump is now doing the same.
With each succeeding administration, the notion that blue slips have anything to do with a nominee’s qualifications rather than partisan concerns seems more and more laughable. The same can be said for senatorial courtesy. While some senators still rise above partisanship and make friends with colleagues across the aisle, the Senate is no longer an exclusive, chummy fraternity. Like it or not, we live in Steve Bannon’s world now, where politics is scorched-earth warfare and no quarter is asked for or given.
In short, blue slips don’t make sense in today’s world. No one really thinks Franken and Wyden object to Trump’s nominees because of their qualifications, just as no one thought Republicans’ objections to Obama’s nominees were apolitical. When it comes to filling vacancies on the courts, both parties are hypocritical political cutthroats and it’s time for the Senate to stop pretending otherwise.
President Trump’s aggrieved complaints aside, there is a good argument for preserving the filibuster on legislation as opposed to nominations. The ability of the minority to have a say or to force the production of some kind of consensus will always be a good thing in our system, where power can change hands between the parties with surprising speed.
But blue slips are not about allowing the minority a say. Instead, they allow any senator to exercise far more power than the Constitution intended. Some traditions are useful for preserving civility and continuity from one generation to another. Others are just bad ideas that no one has yet had the sense to toss in the dustbin of history. It’s time to nuke the blue slip and let all nominees get a hearing and an up-or-down vote.