Senate Majority leader Mitch McConnell might allow some Trump judicial nominations to move forward despite objections from home state Senators using an obscure traditional blocking tactic.
The House and the Senate each have a policy where its members can register a protest, on a blue slip of paper, to a deliberation. In the Senate, blue slips are used by a Senator from a jurisdiction of a district or circuit judicial nominee to show support or opposition to a nomination. In the House, blue slips are filed when a member, usually the chair of the Ways and Means Committee, thinks a bill that originated in the Senate involves certain revenues considerations, and the bill should have started in the House instead.
McConnell told The Weekly Standard that he views the recent blue-slip tradition in the Senate, where the objections of one Senator can end a judicial nomination, as open to interpretation, and it should be considered as an indication of a Senator’s vote – and not a nomination veto. (McConnell made similar comments to the New York Times last month.)
In the end, Senate Judiciary chair Chuck Grassley will make the decision to interpret the meaning of blue slips. A spokesman for Grassley on Wednesday said he “will determine how to apply the blue slip courtesy for federal judicial nominees, as has always been the practice.”
The blue-slip tradition isn’t a Senate rule. The Congressional Research Service says the use of blue slips in the Senate goes back to 1917 and their use has varied over time.
“During some years, a chairman has required a nominee to receive two positive blue slips from his or her home state Senators. This particular blue slip policy, for example, was in place during the eight years of the Obama presidency and much of the George W. Bush presidency—during periods of both unified and divided party control,” the service said in an October 2, 2017 report.
The CRS believes Senator Charles A. Culberson of Texas is the father of the Senate blue slip, and the first blue slip objection was to President Woodrow Wilson’s nomination of U.V. Whipple to a judgeship in Georgia. In the 1950s, Senator James Eastland started a tradition of requiring two positive blue slips from a nominee’s home Senators for the process to move forward.
Since 1979, the policy has varied. In 1989, Senate Judiciary chair Joe Biden stated that negative blue slips would be considered as a factor in the nomination process but not as an absolute veto. One nominee at the time, Vaughn R. Walker, was nominated and confirmed despite a blue-slip objection. In the 1980s, two other candidates with negative blue slips were also confirmed to judgeships.
The CRS concluded that since 1979 those three instances were likely the only cases where candidates with negative blue slips were confirmed by the Senate to judgeships, and no candidate with two negative blue slips has been confirmed since then.
Last month, the two Senators from Oregon, Jeff Merkley and Ron Wyden, said they would file blue slips objections to the nomination of Ryan Bounds to the U.S. 9th Circuit Court of Appeals.
In May, Grassley indicated he might be open to ignoring blue-slip objections to federal circuit judges and honoring them for district judges.
“It’s much more a White House decision on circuit judges than the district court judges,” Grassley told C-SPAN. “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.”
Scott Bomboy is the editor in chief of the National Constitution Center