Bench Memos

Law & the Courts

Reform the Blue Slip

In an editorial today on Senator Al Franken’s refusal to return a favorable blue slip on Eighth Circuit nominee David Stras, the Wall Street Journal encourages Senate Judiciary Committee chairman Chuck Grassley to use the occasion to reform the committee’s blue-slip practice:

The blue slip has been around since 1917, but only a few Judiciary Chairmen have chosen to treat it as an absolute veto. Democratic Senator Ted Kennedy gave home state senators a “reasonable” deadline to return slips, and then put it to a committee vote on whether to proceed if they weren’t returned. Democrat Joe Biden reserved the right to ignore blue slips so long as an Administration consulted with home state Senators. Republican Strom Thurmond gave Members a mere seven days to return slips, then sometimes voted on nominees even over blue-slip objections.

Mr. Grassley has authority under Senate rules to suspend the blue-slip tradition on a case-by-case basis, and Mr. Franken’s abuse deserves to become his first example. The Iowan would also be justified in setting a time limit for returning a slip, since Mr. Franken also exploited the tradition by dragging out his decision on the Stras blue slip for months.

I’ve recommended a similar course of action. As I made clear in this 2006 Weekly Standard article and repeated in 2011, I’ve long been highly dubious of the expanded version of the blue-slip policy that gives individual senators an effective veto over federal appellate judgeships associated with their states (even though the laws do not assign appellate judgeships by state and the caseload of an appellate judge has no more connection to one state than to any other in a circuit).

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