The United States Senate is an institution steeped in tradition: From the filibuster to the amendment process, senators on both sides of the aisle take pride in their chamber’s status as the “world’s greatest deliberative body.” Among the lesser known of these conventions is the century-old blue slip. A blue slip is, literally, a small blue form that allows a senator from either party to halt proceedings on a judge nominated to a federal court within their state. During the Obama administration, Senate Majority Leader Mitch McConnell, a Republican from Kentucky, employed the procedure to block 18 judicial nominees from reaching the bench. On the surface, this tactic can be seen as a purely partisan tool for obstructing a president’s agenda. However, blue slips play an integral role in preventing majority dominance over the judiciary. The blue slip tradition is among the last of important, if under-examined, traditions that protect minority power in Congress.
The significance of blue slips makes Senator McConnell’s recent comments calling for their removal particularly concerning. He voiced his discontent with Democrats’ use of the tradition to block President Trump’s judicial nominees, saying that blue slips should be used as “notification of how you’re going to vote, not as an opportunity to blackball.” Although a spokesman for Senator McConnell later walked back these comments and indicated that McConnell was merely talking about his own view on the tradition, the statements remain alarming.
McConnell faces immense pressure from conservative groups that are eager to push through President Trump’s judicial nominees. The unified GOP Senate and White House represent an opportunity for conservatives to pack federal courts with judges who, because of lifetime appointments, would be able to protect conservative policies for decades, even in increasingly purple states like Texas and Arizona where Republicans may soon lose their dominance. A recent Conservative Action Project memo demanded that McConnell require senators to move through Trump’s backlog of judicial hopefuls. The Judicial Crisis Network even planned to spend hundreds of thousands of dollars on a publicity campaign calling on McConnell to change Senate rules to expedite the judicial confirmation process. While McConnell successfully avoided a public showdown with fellow conservatives and negotiated an end to the potential ad campaign, this outside pressure is a serious threat to the independence of the Senate. Given McConnell’s previous statements and immense interest group pressure, it’s not hard to envision a scenario where this senatorial courtesy falls by the wayside.
Tearing up the blue slip would represent the latest development in a recent history of judicial nominations as a battleground for partisan politics. In 2013, Senate Democrats, frustrated with the Republican filibustering of President Obama’s court nominees, invoked the so-called “nuclear option” to end the filibuster for all judicial nominees aside from those to the Supreme Court. Using the nuclear option proved to be a costly mistake for Democrats, who, now in the minority, saw Republicans retaliate by circumventing the filibuster on Neil Gorsuch’s nomination to the Supreme Court. This came after the failed nomination of Merrick Garland, during which McConnell’s refusal to move forward with the Obama nominee allowed Republicans to usurp a Supreme Court seat from Democrats. This massive payoff came from a risky political gamble.
Moderation and barriers to the majority agenda are integral to the constitutional design of the Senate. Ridding this legislative body of procedures that give the opposition power is to destroy one of its central tenets. The purpose of a congressional chamber separate from the House of Representatives was that the Senate, with its members serving six-year terms, would be insulated from the fads of public opinion. This insulation contrasts starkly with the biennially elected House of Representatives. As a result, the Senate became the deliberative entity where a small group of statesmen could craft legislation with compromise and moderation in mind, serving as an even-tempered counterpart to the people’s House. The founders were wise to create the Senate with compromise and restraint at its core to ensure that the many could never infringe upon the rights of the few via majority rule. The blue slip tradition, like the filibuster, is in line with this founding principle of American democracy as a bulwark for political minorities’ rights. The actions of both parties in rendering the filibuster useless regarding judicial nominees has eroded the institution’s tendency toward moderation, enabling whichever party that controls the body to have undue power over the direction of America’s judiciary.
Without the filibuster, blue slips are the Senate minority’s last defense against unfettered one-party domination of the judicial nomination process. Both parties have expressed interest in preserving the tradition of senatorial consultation—albeit more strongly when they were in the minority and were protecting their own ability to have influence. In a recent memo, Senator Dianne Feinstein (D-California) outlined the history of the blue slip’s importance in forcing the White House to work with the Senate on judicial nominations. She also provided examples of the 18 separate occasions during the Obama presidency that Republicans blocked an appointee via blue slipping without Democrats challenging the validity of the practice. Among these blocked nominees was Justice Lisabeth Hughes, who President Obama nominated to the Sixth Circuit Court of Appeals in Kentucky. Senator McConnell, invoking his home-state privilege, blue slipped Justice Hughes after President Obama refused to nominate his pick, Judge Amul Thapar. By drawing out the nomination until after Trump’s inauguration, the Majority Leader successfully lobbied the president on Thapar’s behalf. Thapar was ultimately confirmed.
Although this scenario was less than ideal for Democrats, it shows the blue slip’s tendency to give minorities power to affect who sits on the bench. However, now that Republicans control the Senate, McConnell has developed the personal belief that blue slips shouldn’t be used to hold up a nominee. A 2009 letter to former President Obama from the entire Republican caucus called on the president to recognize “the importance of maintaining this principle, which allows individual senators to provide valuable insights into their constituents’ qualifications.” With every GOP Senator in the caucus publicly defending the blue slip in 2009, any deviation from this stance recognizing the importance and necessity of the process is seemingly motivated by the prospect of a partisan power grab.
Ultimately, the decision to gut the efficacy of blue slips lies with the Chairman of the Senate Judiciary Committee, Chuck Grassley (R-Iowa). Since blue slips are a tradition, not something codified in Senate rules, the Senate Judiciary Committee is responsible for applying the practice as it sees fit. A spokesman for Grassley said, “over the years, chairmen have applied the courtesy differently, but the spirit of consultation has always remained.” This indicated that Grassley was disinclined to end the custom. A six-term veteran of the Senate, Grassley has been around long enough to remember a time during which partisan rancor was the exception, not the norm. He should understand the importance of the Senate as an environment that fosters compromise.
However, his senatorial experience has not always stopped Grassley from voting to perpetuate partisanship at the expense of protecting the rights of the minority party: Grassley was among the Republicans who voted to go nuclear over Neil Gorsuch, eviscerating the judicial filibuster. Immense pressure from outside groups and the leadership of his own party no doubt weighed heavily on his decision, as it did with many Republicans who voted for the plan anyway, despite apprehension. Senator John McCain, for example, referred to the nuclear option proceedings as a “dark day” in Senate history even though he voted in favor of the measure. Although Grassley has expressed his unwillingness to remove blue slips, it’s not difficult to imagine a situation akin to the Gorsuch nomination that generates enough pressure from leadership and outsiders for the Senator to move against the convention.
Senate Republicans should possess the political foresight to understand that getting rid of blue slips would only hurt them in the long run, just like using the nuclear option for the first time in 2013 backfired on Democrats. After all, capricious political winds bite both ways.