Blue slips. Remember those? They are actual slips of paper, and they are actually blue. Senators sign them to indicate their approval of judicial nominees from their home states. There is no actual rule about this, however, so whoever’s chairman of the Senate Judiciary Committee can play games with them pretty easily.
Here’s how it works. If you require only one blue slip to proceed, that makes it easier for a president to get his nominees confirmed. If you require two blue slips, it’s harder.
So when do you want to make it easier? When the president comes from your own party. When do you want to make it harder? When the president is from the other party. Here’s how that’s worked:
- Pre-1994: Generally speaking, only one blue slip is required.
- 1994: Republicans gain control of the senate. The president is a Democrat. Judiciary Committee chairman Orrin Hatch decides to require two blue slips.
- 2001: A Republican becomes president. Hatch decides one blue slip is plenty.
- 2005: Hatch gets tired of Democratic opposition and decides that no blue slips are required at all.
- 2007: Democrats win control of the Senate. The president is a Republican. Sen. Patrick Leahy goes back to requiring two blue slips. This seems like normal politicking, but….
- 2009: A Democrat becomes president. In a stunning display of integrity, Leahy continues to require two blue slips.
- 2015: Republicans take control of the Senate. Sen. Chuck Grassley naturally continues to require two blue slips since this helps obstruct Obama’s nominees.
- 2017: A Republican becomes president. Suddenly there is chatter about eliminating the blue slip requirement completely. The official excuse is that it should apply only to district court judges, not to circuit court judges. This is pretty obviously ridiculous, but that’s their story and they’re sticking to it. It will undoubtedly prompt dozens of earnest thumbsuckers about the history of the blue slip and whether there’s a case for not applying it to circuit court judges.
Patrick Leahy, the Democratic Judiciary Committee chairman from 2007-2014, applied the blue-slip rule impartially regardless of who was president. This was despite a vast level of obstruction from Republicans to all of Obama’s nominees. On the one hand, good for Leahy. We could use more displays of integrity like this. On the other hand, Democrats lost out on a whole bunch of judges that they otherwise would have gotten confirmed.
By contrast, Republicans have a two-decade history of flipping the blue-slip rule whenever it conveniences them. Is there really much doubt that Grassley is going to nuke it just as soon as a single Democrat fails to return a blue slip on a Trump nominee and Fox News starts screaming about obstruction? I don’t think so.