Senate Republicans are getting closer to doing away with the “blue slip” tradition – an old rule that requires home-state senators to turn in a blue piece of paper that signals they are ready to vote on a judicial nominee. A vote is not held until the blue slips are returned. If even one senator does not return his blue slip, the vote doesn’t take place and the nominee does not move forward.
For months, Republicans have argued that Democrats are abusing the rule to block President Trump’s judicial nominees. The movement to do away with the blue slip rule gained momentum earlier this month after Minnesota Democrat Al Franken vowed to use it to block Trump’s nominee for the 8th Circuit Court.
Oregon Senators Jeff Merkley and Ron Wyden have also promised to use the rule to block Trump’s pick for the 9th Circuit. “As senators charged with the task for advice and consent in the selection of candidates, we take our responsibility to identify and recommend candidates to fill Oregon judicial vacancies very seriously,” reads a letter they wrote to the White House.
Senate Majority Leader Mitch McConnell (R-KY) has announced he is ready to do away with the blue slip tradition, at least for appeals court nominees: “My personal view is that the blue slip, with regard to circuit court appointments, ought to simply be a notification of how you’re going to vote, not the opportunity to blackball.”
As Republican lawmakers struggle to to achieve legislative wins, the courts may be the GOP’s best option to make lasting changes.
President Trump still has 144 empty spots to fill in the federal court system. Six of his nominees have been confirmed, and nearly 50 others are awaiting a vote. Keep in mind these are lifetime positions.
Ultimately, the decision whether or not to observe the blue slip practice rests with Chuck Grassley (R-IA), chairman of the Senate Judiciary Committee. “It’s much more a White House decision on circuit judges than the district court judges,” says Grassley. “I mean, this is going to be an individual case-by-case decision, but it leads me to say that there’s going to have to be a less strict use or obligation to the blue-slip policy for circuit, because that’s the way it’s been.”
About seven more of the spots Trump needs to fill come from states with at least one Democratic senator, and sticking to the blue slip rule threatens to delay these appointments indefinitely.
Democrats are urging Republicans to keep the blue slip tradition, pointing out that six of Obama’s circuit court picks were blocked when GOP senators refused to return their blue slips.
“Even though they do not have the numbers to block Trump’s nominees, keeping Trump from being able to fill even a portion of the total vacancies could limit the damage he inflicts on our courts,” reads a letter from CREDO Action. “Senior members…must commit to total resistance.”
Texas Senator John Cornyn (R) says consultation with home senators is important, “but we’re not going to let an individual senator reverse the outcome of the last presidential election.”
President Trump is well positioned to fill up those 144 vacancies. He has a Republican-led Senate ready to help and Republican groups steadily presenting him with nominees. Getting rid of the blue slip rule would block Dems from interfering and make everything easier, but it would also give Democrats the ability to do the same thing to Republicans when they inevitably regain majority.
“Getting rid of the blue slip would be a mistake,” warns Senator Chuck Schumer (D-NY). “Preserving some of the minority’s power in the Senate has broad support because every one of us knows we’re probably going to be in some of each.”