"Blue Slip" Power to Stop Judge Nominees Weakens

The "blue slip" tradition allows a home-state senator to stop a president's nominee for the federal bench by the senator refusing to return a sheet of paper, known as a blue slip, to the Judiciary Committee.

Nevertheless, current Judiciary Chair Grassley said from the Senate floor “the Judiciary Committee will hold a hearing for two circuit court nominees, each of whom has one home state senator who has not returned a blue slip containing a positive endorsement.” He has scheduled Nov. 29 hearings for David Stras, Trump’s nomination to be an appellate judge on the 8th Circuit, and for Kyle Duncan, nominated to serve the 5th Circuit.

According to the Hill, “A blue slip policy allowing a single senator to block a nominee from even receiving Committee consideration is a more extreme example of a counter-majoritarian practice,” said a memo released earlier this month by Grassley’s staff.

Politico quotes Grassley: “The Democrats seriously regret that they abolished the filibuster, as I warned them they would, but they can’t expect to use the blue slip courtesy in its place. That’s not what the blue slip is meant for.”

President Obama and Senate Democrats Eager to Confirm Judges Before 2014 Elections

New York Times reports: "With the possibility that Republicans could take the Senate in November, the White House and Senate Democrats are working swiftly to confirm judges to the federal courts in an effort to allow President Obama to leave a lasting liberal imprint on the judiciary."

Republicans, the Times says, are "deeply resentful of Mr. Obama for encouraging Senate Democrats to end the filibuster on all presidential nominations but those to the Supreme Court."  Nevertheless, Republicans slow confirmations through the “blue slip”, which allows each senator veto power over any judge from his or her state.

Individual Senators Can Block Confirmation of Federal Judicial Nominees

The New York Times editorializes against the blue slip, the practice by which individual senators can block confirmation of federal judicial nominees

Year-end analysis by Russell Wheeler of Brookings:  "Judiciary Committee chair Patrick Leahy rigorously honors a committee tradition of not processing nominees who are opposed by either home-state senator [blue slip].  It is thus pointless for the administration to send the Senate a nominee without those senators’ assurances they will not block the nomination." 

The NYTimes says of the blue slip: "It’s a form of senatorial courtesy that goes back to 1917 or so, giving senators an anti-democratic power never contemplated in the Constitution."

Federal Judicial Nominations

Year-end analysis by Russell Wheeler of Brookings:  "Judiciary Committee chair Patrick Leahy rigorously honors a committee tradition of not processing nominees who are opposed by either home-state senator [blue slip].  It is thus pointless for the administration to send the Senate a nominee without those senators’ assurances they will not block the nomination." 

Perhaps unsurprisingly and showing the separation of powers with today's divided government: "Of the 29 nominee-less vacancies, 26 were in states with a Republican senator."  

And the pattern back when party control was reversed: "At this point in the Bush administration, nominee-less vacancies were concentrated in states with Democratic senators."

I think the Framers are probably looking down at this and smiling with the sense that it's generally better to have some unfilled judgeships than allow one side of a closely-divided nation to quickly pull the judiciary sharply Left or Right.