National Review
Keeping the Blue Slip
By Michael A. Fragoso
There have been growing calls to eliminate the “blue slip” privilege enjoyed by senators relating to nominees in their states. Briefly, in order for a district judge, U.S. attorney, or U.S. marshal to receive consideration from the Judiciary Committee, he or she must have the sign-off of the relevant home-state senators — in the form of a blue slip of paper. Recently the president’s preferred U.S. attorney in New Jersey, who has not received a hearing, criticized Chairman Grassley for adhering to the traditional practice. Just this morning the president himself said he’d be filing a lawsuit on the subject.
This is a fruitless argument. As Senator Tillis said before the August recess, he won’t vote for anyone without blue slips. This means they won’t be reported to the floor. And even if they made it to the floor, Senator McConnell is a strong supporter of blue slips, so he’d remove any plausible path to 50 votes.
Of course support for blue slips goes well beyond Tillis and McConnell. I doubt removing blue slips would get any votes in the Republican Conference by secret ballot. You can bet that very conservative allies of the president are quietly telling Senators Grassley and Thune that they appreciate the cover because they are big fans of wielding the blue slip. The president has not faced any orchestrated resistance from Senate Republicans to his agenda, but the blue slip is favored by enough institutionalist senators that he very well could were he to push hard to eliminate the practice.
The fact is that, while the blue slip may be frustrating in specific instances, it’s a tool Republicans have used effectively over the last decade. The four district-court seats in North Carolina, where the president nominated four excellent conservatives? They were kept open by the blue slip. There’s also a seat in South Carolina and four seats in Louisiana. One of Mississippi’s was kept open by Senator Hyde-Smith publicly refusing to return a blue slip for Biden’s announced nominee.
Texas has six judicial vacancies thanks to the blue slip. And during the Biden administration, senators Cornyn and Cruz were able to use this prerogative to force the White House into providing moderate nominees for border courts, while keeping the high-profile seats open. They also shrewdly used the possibility of future district-court cooperation to get a middle-aged, moderate liberal appointed to the Fifth Circuit, rather than a young firebrand. Similarly, Senator Young in Indiana used the possibility of his cooperation to negotiate moderate selections for the Seventh Circuit. (He also kept a seat in Indianapolis open.)
Senator Paul actually used his blue-slip power under Biden to stop McConnell-selected Chad Meredith from being nominated! Paul has since changed his mind and returned a blue slip for Meredith under President Trump. Senators Cotton and Vance kept seats open in Arkansas and Ohio, while Senator Sullivan kept most of the seats in Alaska open for President Trump to fill.
Indeed the nine Missouri and Florida judges nominated by the president were filling vacancies kept open by the blue slip. The same is true of the three Alabama seats and the Montana seat.
Of all the district-court nominees currently out there, only two would have vacancies to fill but for blue slips.
To be sure, Democrats abused the blue slip during the Trump years. Then-Senator Harris reneged on deals with the White House for California once she was seeking the vice presidency, leaving many seats in California open. (Although Trump did get five seats in California, including Hunter Biden’s nemesis, Judge Mark Scarsi.) In New York, Senator Schumer would slow-walk things, veto suggestions, and eventually also reneged on deals. That said, Schumer agreed to let Trump put eight judges on that court, including some very effective conservatives like Mary Kay Viskocil, John Cronan, and Rachel Kovner. Of course, the senators from Washington, New Jersey, and Massachusetts gave the Trump administration nothing at all.
To be fair, some Republicans did the same to Obama. Senator Sessions kept five seats open in Alabama (six if you include the circuit), which came to nearly 40 percent of Alabama’s federal judgeships. The Texas senators kept many seats in Texas empty and, indeed, when Obama did nominate some Texans in 2016, because they were part of a deal, at least three of them ended up getting renominated by Trump. What goes around, comes around, and the shoe is always on the other foot.
Beyond the history and politics of abolishing the blue slip, the move lacks sufficient upside. As it stands there are nine current or future judicial vacancies where Democrats can block the nominee. That’s some thin gruel. Beyond those nine, there are around 25 Republican appointees who could go senior in states with at least one Democrat, so 34 in total. At the same time, the odds of Democrat-appointed judges going senior under President Trump, no longer cabined by the blue slip, seem miniscule. The juice at this point simply isn’t worth the squeeze.
Indeed, there are almost as many Republican circuit judges who can go senior this administration as there are Republican district judges who are eligible and in blue states. Circuit judges don’t require blue slips. Helping those circuit judges understand their incentives to elect senior status seems like a far more productive use of political capital than abolishing the blue slip.
Michael A. Fragoso is a lawyer in Washington, D.C. and a fellow at the Ethics and Public Policy Center. He previously served as chief counsel to Senator Mitch McConnell and chief counsel for judicial nominations and constitutional law on the Senate Judiciary Committee. He clerked for Judge Sykes from 2014–2015.