Senate Republicans are considering overhauling a long-standing tradition for processing judicial nominees to thwart potential Democratic obstruction of President Trump’s picks to fill the federal bench. Ironically, it’s a custom GOP lawmakers themselves took advantage of to block numerous judicial nominees under President Obama, creating the glut of vacancies on the bench they now seek to help Trump fill.
The custom is known as the home-state “blue slip,” and it has allowed senators to block judicial nominees hailing from their own states. The “blue slip” refers to the physical blue slips the two senators representing the state from where a judge is being nominated must turn in for the nomination to advance to a committee hearing. In theory, the custom is supposed to encourage the White House to get input from the Senate in choosing federal judges. However, under Obama, GOP senators withheld blue slips to block nominees — even ones they previously backed — as a way of foiling his agenda and leaving the vacancies open for a future Republican president.
The “blue slip” tradition is now in the cross fire of conservative groups, and key GOP senators are expressing openness to changing the way the blue slips are considered, according to reports in the Washington Post, The Hill and Politico.
Republicans fear that Senate Democrats will now give them a taste of their own medicine, amidst reports that Democrats like Sen. Al Franken (D-MN) and Sen. Bob Casey (D-PA) were considering withholding blue slips from appeals court nominees from their respective states.
“If that happens, you might see a shift in the blue slip tradition,” Sen. Tom Cotton (R-AR) said earlier this month.
“We can’t allow Democratic senators to continue to obstruct this president’s agenda. If they’re just arbitrarily not returning blue slips, we have to consider changing that tradition,” Cotton went on to say.
GOP senators are being cheered on by conservative legal groups like the Federalist Society– whose former leader Leonard Leo is consulting with the Trump administration on judges — and by media figures on the right like radio host Hugh Hewitt, on whose show Cotton made his comments.
Republican senators are particularly focused on changing the blue slip rules around appeals court judges, while perhaps preserving the custom for district court nominees, according to the Washington Post.
“Everybody agrees that blue slips on federal district judges are appropriate where the districts are contained within a state, and that’s been the tradition,” said Sen. John Cornyn (R-Tex.), the Senate majority whip who also serves on the Judiciary Committee. “My sense is that we’re going to establish a pattern where a blue slip at the circuit-court level is an expression of advice but is not determinative as to whether that judge will be confirmed or not.”
Because blue slips are a courtesy and not a hard and fast rule, the lack of a blue slip for a nominee could simply be ignored by Republican leaders.
Democrats are, not surprisingly, pushing back against a potential change. In a memo this week, Sen. Dianne Feinstein (D-CA), the top Democrat on the Judiciary Committee, called the elimination of blue slips “a move to end cooperation between the executive and legislative branch on judicial nominees, allowing nominees to be hand-picked by right-wing groups,” according to the Post.
Senate Judiciary Chair Chuck Grassley (R-IA) has previously vowed not to change the rules, and his spokesperson told the Post that he “fully expects senators to continue to abide by that tradition.”
But in a recent C-SPAN interview he signaled openness to changes geared specifically to appeals court nominees.
“It’s much more a White House decision on Circuit judges than the District Court judges,” Grassley said, according to Politico. “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.”
Trump’s role in shaping the federal judiciary was a key rallying point for conservatives wary of his unorthodox candidacy during the 2016 presidential race. His appointment of Neil Gorsuch to the Supreme Court seat vacated by the late Justice Antonin Scalia — an appointment he was only able to make thanks to unprecedented Senate GOP obstruction of Obama’s own nominee, Merrick Garland — was considered a major win for the conservative legal movement. Now he has more than 120 lower court vacancies to fill, vacancies still open in part because of Republicans’ withholding of blue slips of Obama nominees.