What’s a Senate blue slip and why is it losing power? (2018)

By David Hawkings
Posted May 24, 2018 at 7:17pm
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It’s a literal blue slip of paper that for decades meant a senator could block a president’s nominee to a federal judgeship in their home state. These days, however, the Senate’s blue slip might be becoming defunct. Senior editor David Hawkings explains. Below is a transcript of the video: HAWKINGS: Some congressional vocabulary words — when you hear them — offer little clue about their meaning. Like filibuster, for example, or sequester. But others are exactly as they sound. Take the Senate blue slip, which has been playing an important role in the all-important judicial confirmation wars. Believe it or not, it’s an actual, literal sheet of blue paper. But what is its power? And why is it in the news again these days? Blue slips are questionnaires that the Senate Judiciary Committee has been sending out for 101 years to the two home-state senators of every person nominated by a president for a federal trial or appeals court judgeship. The key question: Do you approve of this choice or do you disapprove? At a minimum, asking the question has been a courtesy afforded those senators as part of the constitutional advice and consent system — to allow them to have a special say-so about judges who would preside over cases in their states. But what the committee chairmen have done with that information has varied quite a bit over the last century. The blue slip didn’t have any real teeth for decades. Starting in 1956 and lasting to 1978, though, Democratic Chairman James Eastland insisted on getting positive blue slips from both senators before starting a judicial confirmation process. Things got muddy for a couple of decades after that. When he was chairman, for example, Ted Kennedy required just one blue slip, hoping that would help Jimmy Carter make the federal bench less dominated by white men. Other chairmen said negative blue slips could be surmounted so long as the president at least consulted with the home-staters before tapping someone they didn’t like. Through the bulk of Barack Obama’s presidency, however, the chairman was Democrat Pat Leahy, and he once again required both A-OK blue slips before even scheduling a hearing. That gave Republicans lots of power to block Obama’s picks indefinitely, which is what they did — a big reason why Donald Trump had so many judgeships to fill when he became president. Another thing that happened when the Democrats ran the Senate during the Obama years: They got rid of the filibuster on confirmations, cutting the majority needed from 60 votes down to 51 votes. That way, the GOP would not have a second tool for keeping seats open on the federal bench. But now, of course, it’s Trump that gets to make use of this faster-track process. And with little happening legislatively this election year, pushing the federal courts to the right is his top priority and his best shot for success on the Hill. And he’s about to turbocharge things with help from the Republicans in charge of the Senate — who seem ready to puncture the power of that blue slip as never before. Trump has already filled 21 appeals court seats, one out of every eight in the country. And he has a shot at filling a whole lot more — and maybe even shifting the ideological balance on a couple of the dozen appeals courts, the Second Circuit and the Third Circuit. But that’s likely to require him to get past blue slip objections of Democrats from those northeastern states. The first test, though, involves the sprawling Ninth Circuit, out west, which has a solidly liberal majority. One Trump nominee is Oregon prosecutor Ryan Bounds. Both his home state senators, Democrats Ron Wyden and Jeff Merkley, have refused to turn in their blue slips. But Republican Judiciary Chairman Chuck Grassley has given him a hearing anyway — the first time a nominee has advanced over both home state senator’s objections since at least 1980. If that precedent gets shattered, Trump could feel emboldened to fill several California vacancies on the Ninth Circuit with people opposed by b