Time for Congress to end the abusive 'blue slipping' process

Time for Congress to end the abusive 'blue slipping' process
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The United States Senate is fond of calling itself the “world’s most exclusive club” and “the world’s most deliberative body.” Those two accolades are often in conflict. While the Senate is fond of its “deliberations,” most of the real decisions are made well outside of the public eye. Confirmation hearings are often little more than staged events with scripted lines and predetermined outcomes. One of the most significant limits on open and deliberative debate is a Senate “courtesy” called “blue slipping.” It is the process by which a single senator can prevent the confirmation of a judicial nominee in his or her state.

For more than a decade, I have called for the end of blue slipping as a nondemocratic device commonly used for improper or abusive purposes. Now, Judiciary Chairman Chuck GrassleyChuck GrassleySenate locks in hate crimes deal, setting up Thursday passage Conservative House members call on Senate to oppose ATF nominee House votes to extend ban on fentanyl-like substances MORE (R-Iowa) is warning about the possible curtailment or even ending of the practice. It would be a welcomed change. While it would end a “club” courtesy, it would actually make the Senate of a more deliberative body. The term “blue slipping” comes from the blue slips sent to senators for positive or negative comments on a nomination. To refuse to sign off, or to “withhold the blue slip,” means that the nominee is left without a path to the Senate floor.

Senators have long argued that this informal rule merely acknowledges that senators have special insights into nominees from their own states and that their citizens have a special stake in the qualifications of such nominees. Of course, there is no reason why a senator could not state such reservations to his or her colleagues, views that would clearly be given special weight in the final vote. Blue slipping, however, was designed to invest unilateral and unchallenged authority in each senator.

Senators often talk of blue slipping as if it were an essential part of our constitutional process. In reality, blue slipping conflicts with core constitutional values of the democratic process. It is also a rule that has changed through the years and not for the better. In its first incarnation in 1917, the blue slip allowed senators to oppose a home state nominee and the committee would report the nominee to the full Senate “adversely.” That was the courtesy, but the Senate would still vote on the nominee and the opposing senator could state the objections before the full body and the public.

In 1956, however, the current blue slip system was created by Judiciary Chairman James Eastland (D-Miss.) for the worst possible reason. The country was in the midst of the civil rights movement, and Eastland was opposed to desegregation policies, particularly school desegregation. If a nominee was in favor of such desegregation, Eastland would lower the boom by withholding the blue slip. That system continued until 1979 when Judiciary Chairman Ted Kennedy (D-Mass.) announced that the Senate would not agree to giving members unilateral power to block a nominee. The senator’s opposition would simply be considered as part of the Senate vote. That was changed in 1989 to allow a full block if both senators from a given state issued negative blue slips on a nominee.

That system continued until 2001 when Judiciary Chairman Patrick LeahyPatrick Joseph LeahyCapitol Police chief: Threats against lawmakers up nearly 65 percent since last year Senate GOP faces post-Trump spending brawl Senate Democrats call on Biden to restore oversight of semiautomatic and sniper rifle exports MORE (D-Vt.) reinstated the Eastland blue slip procedure to allow any senator to block any home state George W. Bush nominee. Leahy insisted that “the home state senators who know the needs of the courts in their state best are consulted and have the opportunity to make sure that the nominees are qualified.” In reality, the “needs of courts,” which are qualified nominees who will apply the law without bias or predisposition, are the same regardless of the state. There is no difference between a highly qualified nominee in Maine or Michigan or Texas.

In the worst cases, the blue slip allows is for senators to secure judicial positions for party faithful or personal friends, including relatives. Both parties have abused the privilege in this way. This is not to say that the system is always used for such purposes, but it is ripe for such abuse. In some cases, blue slips are withheld just to pressure the White House on legislation or other appointments. It has also been used on pure questions of ideology rather than intellect. Indeed, that is the very abuse that led to the creation of the rule under Eastland. Grassley has now warned his colleagues that he will not allow the blue slip process to be abuse, including the use to block nominees solely because they are conservatives.

The informal rule demanding consultation by the White House of home state senators is commendable. However, the power to unilaterally block a nominee is unfair to nominees and inconsistent with our constitutional system. The Framers never intended to invest an individual senator with such authority. To the contrary, the Framers, and particularly James Madison, were acutely aware of the dangers of factional and personal interests in government. They sought to combat such influences by avoiding the concentration power in the hands of individuals or even individual branches.

Some of these same arguments have been raised in opposition to filibuster power, which is also a power created outside of the Constitution that gives enhanced power to a minority of senators. However, the filibuster requires 41 senators, not a single senator, to block a nominee. Ironically, Democrats killed filibuster power on nominations as inherently abusive, except for Supreme Court vacancies. This year, Republicans got rid of the exception for Supreme Court nominations to secure the confirmation for Neil Gorsuch. Despite both Democrats and Republicans voting against filibuster power, they still cling to a far more questionable power allowing a single senator to block a nominee.

Calling this a “courtesy” does not lessen the constitutional concerns. A “courtesy” is insisting on senators by their state rather than their personal names on the Senate floor. That is a charming and civil custom. This is less a courtesy as it is a blackball system. It is time to end the Eastland blue slipping process.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.