Like many ancient institutions, the U.S. Senate has more than its fair share of arcane and obsolete rules. Washington spent the last two years debating the merits and deficits of the filibuster as President Joe Biden tried to get his legislative agenda through Congress. With Republicans now controlling the House, attention has shifted to a less well-known policy for judicial nominees: the blue slip.
In general terms, when the president nominates someone to a federal judgeship, the chair of the Senate Judiciary Committee typically sends a blue slip to the senators who represent that nominee’s home state. If both senators return the blue slip—named for the color of paper that it’s printed on—then the nomination moves forward in committee. If one or both of the senators don’t return it, then it stalls out until the senator or senators relent or the nominee drops out.
On Monday, The Washington Post reported that Democrats are preparing for a fight over blue-slip holds, spurred on by progressive groups and senators who see them as an obstructionist tactic that Republicans will exploit to prevent Biden from filling judicial vacancies. Some Democratic senators, however, appear reluctant to give up a tool that allowed them to block some judicial nominees during the Trump administration. Its abolition would help bring the judicial confirmation process closer to something resembling democracy.
There are some promising signs of movement on this front. “I have no love or allegiance to blue slips,” Connecticut Senator Richard Blumenthal, who is a Democratic member of the Senate Judiciary Committee, told the Post. “I think they are an artifact of Senate tradition which should go if they’re used as an obstacle to block qualified nominees.”
On this front, Republicans have already fired the first shot. Blue slips used to generally apply to judicial nominees for both the district and appellate courts. (Supreme Court justices do not have “home state” senators, so no such tradition exists there.) In 2017, midway through his four-year tenure as the Senate Judiciary Committee’s chairman, Iowa Senator Chuck Grassley announced that he would no longer abide by the tradition for circuit court nominees. Grassley said in a speech on the Senate floor that he wouldn’t let senators “abuse the blue slip to block qualified nominees for political or ideological reasons.”
“A senator can’t use a blue slip to block a nominee because it’s not the person the senator would’ve picked,” he told his fellow senators. “The president gets to nominate judges. The White House should consult home-state senators, and it’s important that they do so in a meaningful way. But the White House may disagree with senators and may determine that a different individual is more suited to serve on the circuit court. So long as there is consultation, the president generally gets to make that call.”
Grassley also attributed his decision to former Nevada Senator Harry Reid’s earlier move to end the filibuster for lower court judicial nominees and executive branch nominees, which was eventually expanded to Supreme Court nominees in 2017 when Republicans overcame a Democratic filibuster to seat Justice Neil Gorusch. That seat, of course, was only still open because Republicans had refused to hold a vote on then-Judge Merrick Garland to fill the vacancy left by Antonin Scalia’s death in 2016. Every account of the judicial confirmation wars reads like the War of the Roses, with each side claiming that the other side launched the first salvo.
This decision helped the Trump administration stack the federal appellate courts with nominees from the conservative legal movement, tilting the entire federal judiciary further to the right. While Trump’s three Supreme Court justice confirmations will be his most enduring judicial legacy, his efforts to shift the lower courts will be almost as impactful. Because the Supreme Court only hears a few dozen cases each term, the final rulings in thousands of cases each year are made by the federal circuit courts of appeal.
Democrats also have good reason to resent the blue-slip system and its abuses. Florida Senator Marco Rubio famously failed to return a blue slip for Mary Flores, whom Obama had nominated to a district judgeship in the Sunshine State in 2014, even though Rubio himself had recommended her to the White House. The senator had previously blocked another nominee, William Thomas, that he had also recommended to Obama. Both nominations were eventually withdrawn. In Flores’s case, the vacancy went unfilled until the Trump administration took over in 2017, allowing Republicans to install a nominee they preferred.
An even more extreme example occurred in North Carolina, where Judge Malcolm Howard took senior status—a form of semi-retirement for judges that opens up a vacancy but allows them still to hear some cases—in 2005. Democrats declined to hold a vote on George W. Bush’s nominee to fill the seat after retaking the Senate in 2006. North Carolina’s two Republican senators then used blue slips to block hearings on two nominees—Patricia Timmons-Goodson and Jennifer May-Parker—who would have each been the first Black woman to hold a federal judgeship in North Carolina. Trump eventually managed to get Richard Myers, his second nominee to the job, confirmed by the Senate in 2019—fourteen years after the vacancy originally arose.
There is nothing particularly sacrosanct about the blue slip. It is not some divinely inspired wisdom that was revealed to the Founding Fathers in Philadelphia. Nor is it a long-established rule that Americans have come to expect from the Senate. (I doubt most Americans even know it exists.) The blue slip is most conspicuously not grounded in anything substantial—it’s not an official part of the Senate rules, just a policy or practice that various Senate Judiciary Committee chairs have abided by in various forms.
Nor is the blue slip’s history crowned in glory, as Grassley sagely noted in 2017. “It was not until 1956 that the blue slip policy changed under Chairman James Eastland, a Democrat from Mississippi,” Grassley observed. “Chairman Eastland began to require both home-state senators to return positive blue slips before holding a hearing and a vote. Chairman Eastland was well-known for his segregationist views. Unfortunately, it’s likely that he adopted a strict blue slip policy to veto judicial nominees who favored school desegregation.”
The one reasonable counterargument that the blue slip’s defenders could make is that it also prevents Republican presidents from stuffing the judiciary with their preferred nominees. The best answer to that is also the simplest one: If Democrats don’t want Republican presidents to appoint certain judges to the federal courts, they should win elections to ensure that they don’t get the opportunity and rally voters to that case. Until then, they would be justified in using their electoral mandate to fill the judicial vacancies that their own voters expected Biden to fill when they elected him two years ago.