The issue of the blue slip hasn’t gone away. As I’ve argued before, getting rid of them is not a very good idea. It’s also fruitless red-on-red violence because even if Chairman Chuck Grassley ignored blue slips, Senator Thom Tillis has said he’d vote down any nominees without them. Normally that would end the matter, but unfortunately, it hasn’t here.
It seems the dispute mostly involves U.S. attorneys because of the president’s particular interest in controlling the levers of law enforcement. But, frankly, given that basis for the dispute, it’s even less likely that a blue-slip-free Senate will give the president the U.S. attorney nominees he wants. At the same time it would do real damage to where the blue slip matters most: lifetime appointments to the district courts.
I observed over the summer, “As it stands there are nine current or future judicial vacancies where Democrats can block the nominee.” In total, “There are around 25 Republican appointees who could go senior in states with at least one Democrat, so 34 in total.” Those aren’t earth-shattering numbers, but it may be worth looking at where things stand today.
The fact is that the blue slip is only impeding a dozen or so district-court appointments. There are currently eleven vacancies in states with two Democratic senators (D. Mass (2), D. Conn, S.D.N.Y. (3), E.D. Mich., D. Minn., S.D. Cal., D.N.M., and N.D. Ga.) and two in states with one Democrat (D. Maine and E.D. Pa.).
On the other hand there are 33 vacancies in states with two Republican senators. Of these, eleven have nominees which leaves 22 seats open in red states with no nominee, or twice as many as in blue states.
Of these 33 vacancies, 17 arose under Biden. This means that half the red-state vacancies currently exist today because of the blue slip. Shockingly, though, nine of the 17 vacancies Trump inherited — in red states — do not yet have a nominee. All told, 21 of the 33 red state vacancies don’t have nominees.
The problem here isn’t the blue slip. Even without the blue slip, a nominee opposed by a home-state Republican wouldn’t get confirmed. Of the 33 red-state vacancies, ten of them are in Texas: A nominee opposed by Senator John Cornyn or Senator Ted Cruz simply won’t even get out of committee.
If it’s not a blue-slip problem, whose problem is it? It seems very likely that the bottleneck may be Republican senators themselves. The fact is that vacancies in some states are filled quickly. In Missouri and Arkansas, for example, new vacancies are filled almost as soon as they become available. Things have also moved at a fast clip in Florida and North Carolina. It’s not a coincidence that Senators Eric Schmitt, Josh Hawley, Tom Cotton, Rick Scott, Ashley Moody, Thom Tillis, and Ted Budd all put a premium on a sound judiciary.
The confirmation rate is very different in, say, Kansas, where half the court is vacant and there isn’t a nominee in sight. One has to conclude this is because the senators and the White House just don’t see eye to eye. Or take South Carolina, where the vacancy has persisted since the Biden administration.
What makes this especially frustrating is that it’s not the problem we’ve had in the past where it can be hard to find good nominees of the type Republicans prefer — young, talented, conservative. These states with vacancies have no shortage of those nominees waiting in the wings — like Katie Stoughton in South Carolina, Zach West in Oklahoma, or Matt Byrne and Philip Williamson in Ohio. The problem in a state like Texas may be that there are simply too many good nominees, but that’s a “problem” in Florida, too, and they worked through it quickly. The fact is that there’s simply no good reason for this kind of holdup.
This isn’t to say that senators can’t and shouldn’t assert their prerogatives. I think it would be hard for anyone to say that Senator John Kennedy is a shrinking violet when it comes to judicial appointments, but Louisiana has moved at a reasonable pace when it comes to filling its judgeships. This means there’s a difference between senators asserting their prerogatives and senators keeping seats open unnecessarily in a Republican administration.
The Republican base, for its reasons, may be more interested in U.S. Attorneys, but the most productive question for Republican senators isn’t “Will you get rid of the blue slip?” but rather, “Why won’t you fill these seats already?”