Bench Memos

Law & the Courts

Setting the Senate’s ‘Blue Slip’ Policy

As chairman of the Senate Judiciary Committee under a new president, Senator Chuck Grassley has a special opportunity to set a sensible “blue slip” policy for President Trump’s judicial nominees. (The “blue slip” refers to the piece of paper that the chairman of the committee sends to a senator informing him that the president has made a nomination to a position in his home state and inviting him to object or offer support. I wrote more extensively about it in my 2006 Weekly Standard article titled “Droit du Sénateur.”)

I respectfully suggest that Chairman Grassley should restore what Senator Orrin Hatch, his predecessor as chairman (from 1995 through 2005), called the “Kennedy-Biden-Hatch blue-slip policy.” Under that policy, the return of a negative blue slip on a nomination would be given “substantial weight,” but a committee hearing and vote on the nomination would proceed.

(The Left attacked Hatch for apparently giving greater weight to negative blue slips, or at least to negative blue slips from both home-state senators, when Bill Clinton was president. But as I observed in the article linked above, “Especially when it is acceptable to return a negative blue slip on ideological grounds, it is elementary common sense, not hypocrisy, for a committee chairman to distinguish between granting his own majority colleagues the power to block a nominee of a president of the opposite party, on the one hand, and granting a member of the minority the ability to block a nominee of a president who is of the same party as the committee chairman.”)

As a second-best alternative, Grassley could sensibly differentiate—as he has signaled he might well do—between district-court and appellate-court nominees and give home-state senators more say over district-court nominees. After all, the caseloads of district judges clearly relate to the state in which the judge will sit. By contrast, the caseloads of appellate judges are drawn from the various states in a single circuit, and any particular appellate judge takes part equally (pro rata) in the cases arising from the district courts across those various states. If Grassley takes this differentiated approach, it is important that he make clear that a negative blue slip on an appellate nomination will receive no more than “substantial weight.”

What would not be sensible—what would in fact be severely damaging to the prospect of restoring the courts—would be for Grassley to give each home-state senator, Democrat or Republican, an effective veto over President Trump’s district-court and appellate-court nominations to seats in the senator’s state.

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