The Senate’s constitutional role of “advice and consent” is an essential check on the president’s constitutional power to appoint executive and judicial branch officials. The Senate is charged with advising the president on his nominations and ultimately giving or withholding its consent. Yet the current Senate majority seems determined to weaken the Senate’s role and leave the president’s appointment power essentially unchecked.
The Senate’s checks on the president’s appointment power come most directly through confirmation votes. Two longstanding Senate practices have also served as essential constraints, especially when the same political party controls the White House and the Senate.
These practices foster consultation between the White House and the Senate, and encourage the president to consider more than simply whether his own party can deliver 51 votes for confirmation.
When I chaired the Judiciary Committee, Democrats warned that without the filibuster the Senate’s proper role in judicial appointments would be eviscerated. Then-Assistant Minority Leader Harry ReidHarry ReidRepublican failure Senate about to enter 'nuclear option' death spiral Top GOP senator: 'Tragic mistake' if Democrats try to block Gorsuch MORE (D-Nev.), for example, said in February 2003 that “the Constitution’s consent requirement is not just a rubberstamp requirement,” and declared that members of the minority “refuse to serve as a rubberstamp.” Days later, then-Judiciary Committee Ranking Member Patrick LeahyPatrick LeahySenate braces for fallout over Supreme Court fight Register of copyrights should be presidential appointee GOP senator on going nuclear: 'I really hope that it doesn't come to that' MORE (D-Vt.) insisted that the Constitution “says ‘advise and consent,’ not advise and rubberstamp.”
The blue slip process is a Judiciary Committee tradition that dates back nearly a century, under which the chairman seeks the views of home state senators about judicial nominees. A single senator could no longer filibuster a nomination after a rule change in 1949. Since then, the views of home state senators expressed through the blue slip process have correspondingly been given even greater weight.
Throughout its history, the blue slip process has not resulted in any sort of confirmation “bottleneck.” In fact, the percentage of nominees without positive blue slips is miniscule. But it has greatly enhanced consultation and cooperation between home state senators and the White House.
As Judiciary chairman, I continued this blue slip tradition. Not a single district court nominee received a committee hearing, and not one appeals court nominee was confirmed without the support of their home state senators. (The two nominees who received hearings but lacked that support were filibustered on the Senate floor.) As had been the case for more than a century, the filibuster and the blue slip process work together to make meaningful “advice and consent” a reality and to preserve a real check on the president’s appointment power.
When the current majority abolished nomination filibusters last November, it removed what its own leaders once claimed was essential to enable the Senate to serve as anything more than a mere “rubber stamp.” Weakening or eliminating the blue slip process would sweep aside the last remaining check on the president’s judicial appointment power.
Anyone serious about the Senate’s constitutional “advice and consent” role knows how disastrous such a move would be. Sen. Leahy warned in 2003 that the majority was trying to “rewrite Senate history in order to rubberstamp the federal judicial nominees of this White House and that this will cause long-term damage to the Senate and the courts.”
A confirmation process without filibuster or blue slip veto would weaken the collaboration between the president and the Senate, further politicize the confirmation process, and ultimately produce a more politicized federal judiciary.
I sincerely hope that the majority will not continue to sacrifice the good of the Senate and the good of the country simply to serve short-term political interests. I’m glad Chairman Leahy has preserved the blue slip process. It should stay that way.
Hatch is the senior senator from Utah, serving since 1977. He is ranking member on the Fiance Committee and sits on the Judiciary and the Health, Education, Labor and Pensions committees. He chaired the Judiciary Committee from 1995-2001 and 2003-2004.