The blue slip: A soon-to-be extinct ideological tool?
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Senate Republicans and Democrats are headed for a showdown over whether to keep or do away with the blue slip and its power to block judicial nominations. Given its recent track record of ideological abuse, the blue slip likely is headed for extinction. Just as senators extirpated the filibuster after it became a filthy kennel of ideological obstruction, so too are they likely to terminate the blue slip.

For those unfamiliar with the blue slip, a brief primer follows. As its name (surprisingly accurately) suggests, the blue slip is a blue slip of paper home state senators return to the Senate Judiciary chairman indicating whether they support or oppose a particular nominee to a federal judicial position in their state. (Senators can blue slip other federal nominations tied to their states, but the largest disputes occur over judicial nominations.) A senator can try to block the nomination by returning a negative blue slip to the Senate Judiciary Committee chairman or by failing to return the blue slip at all. When a senator “blue slips” a nominee, the Judiciary chairman must determine whether to move forward with the nomination. In most instances, a blue slipped nominee has a difficult time getting through the senate. What is particularly interesting about the blue slip process is that it occurs outside the public’s view. The blue slip never actually sees daylight unless the blue slipping senator publicly announces his or her actions.

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In a recent study, my coauthors and I examined the conditions under which senators used the blue slip to block judicial nominations to lower federal courts. We obtained data on every nomination to the federal district and circuit courts between the 107th and 110th congresses (2001-2008), and whether the two home state senators blue slipped any of those nominees.

For nominees to the federal district court (the federal trial court), the results were mixed. The data showed that senators blue slipped district court nominees for ideological reasons, but were not completely beholden to their ideological impulses. As the ideological distance between a senator and the nominee increased, so too did the likelihood that the senator would blue slip the nominee. The data also showed, though, that senators were significantly less likely to blue slip nominees that possessed greater qualifications. In other words, while senators were most likely to blue slip ideologically distant district court nominees in general, they were much more likely to blue slip distant-unqualified nominees than distant-highly qualified nominees. Qualifications mitigated the negative effect of ideological distance. 

That’s the “good” news. Here’s the bad news: When it comes to circuit court nominees—appellate court positions with considerably more legal policymaker power—all bets are off. Senators used the blue slip to obstruct (again, in private) circuit court nominees almost entirely for ideological reasons. As senators became increasingly distant ideologically from circuit court nominees, they were more likely to blue slip the nomination. Importantly, though, stellar qualifications failed to protect circuit court nominees from ideologically driven senators. Indeed, senators were just as likely to blue slip a distant-highly qualified circuit court nominee as they were a distant-unqualified circuit court nominee. Put simply, the data suggest senators care little about circuit court nominee qualifications when it gets in the way of their ideological goals of packing the circuits with ideological allies.

And that’s not all. The data paint an even clearer picture of opportunistic blue slipping behavior by senators. They were more likely to blue slip nominees as the end of the congressional session neared. Blue slipping near the end of a session is more useful to senators because it allows them to exact greater concessions from presidents seeking to place their nominees in office with a ticking clock.

The modern nomination and confirmation process is a mess with no clear moral high ground in it. Not even John Deere could make a machine to till that ground today. What is clear, though, is that Senate Democrats will blue slip President Trump’s judicial nominees, especially his circuit court nominees. Indeed, they have already threatened to blue slip a few. They will argue, as Republican senators did when they faced Democrat presidents, that the blue slip is an honorable practice that protects home state prerogatives and is heir to the (regrettably, now outdated) notion of institutional courtesy among senators.

While home state prerogatives clearly are important, and senatorial civility would be welcome, the data suggest that the blue slip has moved beyond these justifications and has outlived its usefulness. It has become a tool of ideological obstruction and is likely to become extinct in short order. 

Ryan Owens is a political science professor at the University of Wisconsin-Madison. He also is an Honorary Fellow in the Institute for Legal Studies.


The views expressed by this author are their own and are not the views of The Hill.