With the White House’s initial batch of 11 nominations for lifetime appointments—with most of the names taken from lists compiled by the conservative Federalist Society and Heritage Foundation—before the U.S. Senate, Republicans there are warning that they may change the rules to push them through over Democratic objections.
At issue are “blue slips,” a 100-year-old Senate tradition where home-state senators signal their support or opposition to a judicial nominee by returning a blue slip of paper saying yea or nay (or, in recent years, simply not returning it at all, which also dooms the nomination). No Obama district or circuit court nominee in eight years even got a hearing before the Judiciary Committee unless both home-state senators returned blue slips saying “yea.”
Abiding by this rule under Obama led to record vacancies, along with the sense that Democrats are saps in the wielding of power. How much is the moral high ground worth? A lot, says Senator Dianne Feinstein, the ranking Democrat on the Senate Judiciary Committee, if you don’t want a direct path from the conservative Federalist Society onto the federal bench—and if you want to preserve senatorial control as opposed to ceding more power to the White House.
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She called the elimination of the blue slip “essentially a move to end cooperation between the executive and legislative branch on judicial nominees, allowing nominees to be hand-picked by right-wing groups.”
The courtesy of blue slips encourages consultation between the White House and senators of the opposite party. Democrats cite an example from the Obama years where Utah Republican Orrin Hatch signaled support for a Democratic nominee over two Republican alternatives. Georgia’s two Republican senators left a seat vacant for almost a thousand days, returning their blue slips only when a second vacancy opened up and President Obama agreed to name a Republican to that seat.
Eliminating the blue slip, a longstanding senatorial prerogative, would shift power away from the Senate to the president, and do Republicans really want to do that with this particular president?
The reason there are currently 11 judicial vacancies in Texas is because Republican Senators Cruz and Cornyn refused to sign off on any Obama nominee. The White House eventually gave up even offering names to fill them. In Pennsylvania, a vacancy has been open on the Third Circuit since July 2015 after the White House could not reach agreement with Republican Senator Pat Toomey on an acceptable candidate.
Now the situation is reversed, with Trump’s judicial nominees facing a potential blue wall. In the first wave of nominations expected to arrive monthly from the White House to fill some 120 vacancies, there are nominees in two states with two Democratic senators, Minnesota and Michigan. Democrats also hold one senate seat in Indiana, Ohio, and Missouri, where under the senatorial courtesy observed by every recent administration, the Democratic senator can block Trump’s judge picks by not returning their blue slip.
Republican Senator Grassley, who chairs the Judiciary committee, has said he might make exceptions for circuit court nominees. He’s under pressure from conservatives to waive the blue-slip courtesy so the GOP can get their judges in place. The rationale floated by Republican Senators Jeff Flake, John Cornyn, and Tom Cotton would leave the blue slip in place for district court judges because they operate within a single state, but lift it for circuit court nominees because they operate in multiple states.
A Republican talking point claims that Democrats would do it if they had the chance, prompting Feinstein to point out that Democrats never waived the tradition even when they had the power.
According to Daniel Goldberg with the Alliance for Justice, a liberal advocacy group, President Obama left 17 district and circuit court nominations on the table, stalled by the refusal of Republican senators to return their blue slips. Of those 17, only one was a white man; 10 were women, and 10 were African American.
Among the justices now before the Senate, four are vying for seats that Republican senators used blue slips to hold open for an unconscionably long time, years in some cases. Former Alabama Solicitor General Kevin Newsom, who had a hearing before the Senate last week, is up for a seat on the 11th circuit only because Obama’s nominee, Judge Abdul Kallon, never had his blue slip returned by then Republican Senators Jeff Sessions and Richard Shelby. Born in Sierra Leone, Kallon was unanimously confirmed by the U.S. Senate to the District court, and would have been the first African American nominated to the 11th circuit from Alabama.
That recent history makes the Democrats look like losers for abiding by tradition in this furious political climate. But it’s this sort of courtesy, along with many others, that separates the Senate from the House, and it’s such norms that the current GOP majority is stripping away. Eliminating the filibuster for Supreme Court judges, crafting a major piece of legislation in secrecy and then invoking a little used rule to bring it directly to the floor and bypass committee hearings, which is what the GOP is doing with health care, is all part of changing the culture as we knew it on Capitol Hill.
Since at least 2009, when GOP leader Mitch McConnell advocated total resistance to new President Barack Obama, Republicans have been turning the Senate into the House, with majority rule in all instances—which is not how the Senate traditionally operates. The Founding Fathers wanted it to be the saucer that cools the passions of the House.
Adopting the unilateral powers of the majority suits the GOP at the moment, but once the Democrats get back into power, they Democrats will not undo these steps, nor should they.
Which is why the Republicans might be bluffing on blue slips. This is more than the minority surrendering to the majority on an obscure piece of senate business. The blue slip is a symbol of power. It makes every senator king of the Hill. Nobody gets a federal judge in their state without kissing their ring.
Why would any senator give up such undisputed power to this president, or any president for that matter?
