Why The 'Blue Slip' Battles Are Becoming White Hot

In January, when the Senate confirmed President Donald Trump's Eighth Circuit nominee, it did so over distress sirens from Democrats.

David Stras, the former Minnesota Supreme Court justice, became the first federal judge in nearly 30 years to take the bench without both "blue slips," which allow home-state senators to stall or advance a judicial nominee. The vote followed a move by Iowa Republican Chuck Grassley, the head of the Judiciary Committee since 2015, to advance the nomination despite the missing form.

After Judge Stras' confirmation, Judiciary Committee ranking member Dianne Feinstein, a California Democrat, called the development an existential threat to the Senate's constitutional advice and consent role, arguing it risks diminishing senators to a "rubber stamp."

Now, the debate over the century-old Senate tradition has reached a fever pitch as court watchers wait to see how the Senate will treat withheld blue slips for some of Trump's most controversial nominees, including a Ninth Circuit pick opposed by Oregon's Democratic senators for his "alarming" college writings on issues including sexual assault.

While Judiciary chairs have interpreted blue slips variably over the years, the Senate has generally been inclined to take objections to nominees seriously. Nominees without blue slips have been confirmed only a handful of times since the tradition began in the early 20th century, as documented in a 2017 Congressional Research Service report.

While a disregarded objection from a home-state senator doesn't necessarily spell the demise of the tradition, experts say there's some merit to concerns about how weakening the mechanism may alter Senate dynamics — especially as presidents have sought more control over judicial selections in recent decades.

"Blue slips and the degree to which home-state senators' objections are respected have definitely fluctuated over time," said Amy Steigerwalt, a political science professor at Georgia State University and the author of "Battle Over the Bench: Senators, Interest Groups, and Lower Court Confirmations."

"But historically, more often than not, blue slips, or home-state senator objection, has been respected because of what it represents more broadly: the power of the institution of the Senate."

Keeping Up With the Kennedys?

The strict implementation of blue slips under recent presidents can be traced to Sen. James Eastland of Mississippi, a segregationist Democrat who presided over the Judiciary Committee for nearly 23 years starting in 1956. Eastland elevated the blue slip from a simple channel for feedback, and under his lead its importance was absolute.

In 1979, Democratic Judiciary Committee Chair Ted Kennedy signaled a shift away from the use of blue slips as non-negotiable vetoes. He described the move as an effort to create a more inclusive judiciary, saying in later interviews that blue slips had at times been a tool to block female and minority candidates from the lifelong seats.

"That's the irony of the Democrats' argument today," said Jonathan Turley, a George Washington University law professor and critic of the blue slip tradition. "The blue slipping system was the creation of a Dixiecrat opposing desegregation during the Civil Rights era, a system that was later rejected by Ted Kennedy, a liberal icon."

Kennedy's move coincided with President Jimmy Carter's push to diversify the federal bench. In his 1979 State of the Union message, Carter announced that he was "determined to increase the low representation on the federal bench of women, blacks, Hispanics and other minorities."

His successor, Ronald Reagan, also exercised his vision for the judiciary, although his administration focused more on nominees' legal philosophy. Reagan's attorney general, Edwin Meese, frequently articulated a conservative ideal for judicial nominees who focus on the text of the Constitution.

As presidents exerted more say over judicial nominations, senators sought to wield blue slips to assert their own role in the process. The 1980s saw four nominees confirmed without a blue slip from a home-state senator. The only other recorded instance of this was in 1936.

In a 2014 paper on modern-day judicial selection published in the Illinois Law Review, a group of political science professors reviewed recent blue slip data to find that senators from both parties tended to oppose qualified candidates if there was an ideological gulf between the lawmakers and the nominees.

On the district court level, highly qualified candidates could still win over senators who were reluctant on ideological grounds. At the circuit court level, however, not even high qualifications could help nominees overcome ideological objections, the study found.

"Our study shows that now ideology has taken root, especially in these appellate court nominations," said Ryan Owens, a political science professor at the University of Wisconsin Law School who co-wrote the law review article.

The Appealing Judgeships

The recent debate over the blue slip process has largely focused on these coveted circuit court seats. In an interview with Time magazine earlier this year, Senate Majority Leader Mitch McConnell called for relaxing this process.

"It's my view that the blue slip tradition ought not to apply to circuit judges, and I'll try to convince Sen. Grassley of that as well, that it ought to be treated as a notification of how you're going to vote rather than a blackball," the Kentucky Republican told the magazine.

Under the Trump administration, at least three appeals court nominees have already advanced despite the lack of a blue slip. Grassley announced in November he would conduct hearings for Judge Stras and a Fifth Circuit nominee, Schaerr Duncan LLP's Kyle Duncan, without both blue slips, and he cited Ted Kennedy's move as precedent.

Seventh Circuit nominee Michael Brennan, a lawyer with Gass Weber Mullins LLP, also received a Senate Judiciary Committee hearing in January and advanced out of the committee in February while missing a blue slip. Federal prosecutor Ryan Bounds, a Ninth Circuit nominee who is opposed by both Oregon senators, has yet to receive a hearing.

So far, Grassley has not advanced any district court nominees with missing blue slips, although he seems to have left open the possibility.

"I'm less likely to proceed on a district court nominee who does not have two positive blue slips from home-state senators," he said on the Senate floor in November.

The advancing nominations stand in contrast to the eight years of the Obama administration, when there were 20 nominees for whom senators did not return blue slips, according to the Congressional Research Service. In two of those cases, senators later changed their minds, and the nominees advanced. The remaining 18 nominations, however, were stalled.

"Now under Trump, Grassley is not treating blue slips as dispositive for circuit court nominees — suggesting a partisan gamesmanship motivation," said Laila Robbins, a researcher with the nonpartisan Brennan Center who studies federal courts.

Merit or Ideology?

Some senators, aware of the perception that withholding blue slips could be seen as simply partisan or ideological obstruction, have formalized their own selection committees to help seek and vet applicants.

Created in 1977 after a pair of executive orders from President Carter, the use of such commissions to select and vet applicants has grown more formalized in recent years, although they are not mandatory and not all senators use them.

Senators from states including Ohio, Oregon and Wisconsin have formed bipartisan formal commissions, groups that often include former federal judges, prominent BigLaw attorneys and in-house counsel.

These senators argue that their decision to withhold a blue slip isn't simply a matter of personal preference.

In Wisconsin, the White House chose Brennan for the Seventh Circuit before consulting with its senators or its commission, according to Democratic Sen. Tammy Baldwin, who has withheld her blue slip.

In Oregon, Sens. Jeff Merkley and Ron Wyden said in February that Bounds, the Ninth Circuit nominee, had not been forthcoming about some of his "inflammatory" college writings about sexual assault, racial minorities and LGBTQ people when a judicial selection committee vetted him.

The committee had recommended Bounds as one of four finalists for the seat before the writings were discovered, and the senators have cited these writings as the reason for withholding the blue slips.

Bounds recently apologized for the "misguided sentiments" he expressed as a student, The Oregonian reported.

Blue slip critics like Turley remain skeptical that such commissions can fix the process.

"It can be a good thing, because these commissions tend to winnow out people from ideological extremes and people who are incompetent," he said, discussing the general process. "But it's a system that favors noncontroversial nominees that have never had or spoken an interesting thought in their life."

For court watchers like Alicia Bannon of the Brennan Center, it's clear that the blue slip can function as a way to ensure that senators have some kind of role in the judicial nominations process. But that's where the bright lines end.

"It can be an abstract question," she said, "what the perfect blue slip policy is to encourage the appropriate level of consultation with home-state senators."

Sindhu Sundar is a feature reporter for Law360 who last wrote about the #MeToo movement's effects on internal investigations. Follow her on Twitter. Editing by Jocelyn Allison, Jeremy Barker and Jill Coffey.

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