The Constitution says that the president shall nominate and, with the advice and consent of the Senate, shall appoint judges and other officials.
But under a tradition often (though not invariably) followed by the Senate Judiciary Committee, one senator can prevent his or her colleagues from considering a judicial nominee from that senator’s state by refusing to return a “blue slip.” The slip is a tinted form that the committee sends to the two senators from a nominee’s home state, seeking their blessing to move ahead on the nominee.
If giving one or two senators the power to kill a nomination sounds like a twisted reading of the “advice and consent” clause, it is. But Senate Democrats are defending the blue slip as the only way to stop President Trump from pushing the federal judiciary to the right.
Sen. Dianne Feinstein, the ranking Democrat on the Judiciary Committee, recently warned that eliminating the blue-slip tradition, as some Republicans advocate, would “end cooperation between the executive and legislative branch on judicial nominees, allowing nominees to be hand-picked by right-wing groups.”
Some of Trump’s judicial nominees have been extreme, and the administration could be doing more to consult with home-state senators of both parties. But allowing home-state senators to veto a judicial nomination is hard to reconcile with the design of the Constitution. In explaining the confirmation process, Alexander Hamilton wrote that the president would submit his choices for office to “the discussion and determination of a different and independent body,” not a single senator.
In 2013 we applauded when the Democratic-controlled Senate abolished the filibuster for most judicial nominations in 2013 in response to Republican obstructionism. The blue-slip veto is an even more extreme example of empowering a minority; it too should be abolished.
The blue slip is rooted in the idea that senators possess superior knowledge about the legal credentials of candidates from their states. But in recent years the blue-slip veto also has been used to frustrate a president’s attempt to shape the federal judiciary.
During the Obama administration, as Feinstein has pointed out, several nominees for seats on federal appeals courts didn’t move forward because Republican home-state senators wouldn’t return blue slips. For example, Sen. Mitch McConnell of Kentucky (who is also the Senate majority leader) blocked a hearing for Kentucky Supreme Court Justice Lisabeth Tabor Hughes, nominated to the U.S. 6th Circuit Court of Appeals and rated well qualified by the American Bar Assn. Now some Democrats are treating Trump nominees the same way.
Sen. Al Franken recently announced that he won’t return a blue slip for David Stras, a Minnesota Supreme Court justice nominated to serve on the U.S. 8th Circuit Court of Appeals, because he fears Stras would be too conservative. Oregon’s two Democratic senators have said they will withhold blue slips for Ryan Bounds, nominated to the U.S. 9th Circuit Court of Appeals, because the administration didn’t cooperate with their judicial screening process. But the “advice and consent” clause doesn’t obligate a president to accommodate home-state senators; it simply requires the president to obtain the support of the Senate majority.
The case for abolishing the blue-slip privilege for appeals courts is especially strong because the judges on most of those courts rule on cases from several states. Yet it’s hard to justify a veto for home-state senators even for federal district judges. Certainly those senators should play a prominent role in identifying potential judges from their states and vetting nominees. But ultimately, the fitness of a nominee should be determined by the Senate as a whole.
To be fair, some Democratic senators have returned blue slips for Trump judicial nominees. But the prospect that the blue-slip process will be used routinely by Democrats to thwart Trump’s judicial picks has moved McConnell to suggest that the practice be abolished for nominations to circuit courts of appeal.
Sen. Charles Grassley (R-Iowa), the chairman of the Judiciary Committee, hasn’t gone that far. He has said that he expects the president and senators will continue the tradition of consultation on judicial nominations, but also notes that the blue-slip process typically grants the president greater deference on circuit court nominees than at the district court level.
If this means that home-state senators are entitled to consultation on judicial selections from their states, but not a veto, we agree.
We understand that, with 146 vacancies on the federal bench, Democrats see a blue-slip veto as their only chance to limit Trump’s transformation of the federal courts. We also recognize that Democrats are still seething over Republican delaying tactics that prevented Obama from filling many of those vacancies — most outrageously, when they squelched Obama’s nomination of Judge Merrick Garland to fill the Supreme Court seat left open when Justice Antonin Scalia died in early 2016. It’s hard to blame Democrats for striking back, but that cycle of partisan retaliation has driven Congress into a cul-de-sac of dysfunction.
As with the filibuster, the standard for judging the blue-slip veto shouldn’t be the short-term advantage one party or the other would receive. The goal should be a process that is faithful to the Constitution regardless of who controls the Senate or the White House. Allowing one or two senators to block a nomination is not such a process.
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