On March 21, 2017, President Trump made his first lower court nomination: Judge Amul R. Thapar for a seat on the Sixth Circuit Court of Appeals.^[1]  With over 136 current and future vacancies on the federal bench,^[2] more nominees will likely follow.  With a Republican majority in the Senate, the elimination of the filibuster on lower court nominations, and conservative groups howling for blood, there is little incentive for Trump to choose moderates for the bench. However, one Senate practice may work to constrain Trump’s more conservative nominees and encourage him to work with Democrats: the blue slip.

The History of the Blue Slip (From Cumberland to Biden)

Derived from the traditions of senatorial courtesy, the blue slip is named after the traditional blue paper it is printed on.  When a nominee is submitted to the Senate Judiciary Committee, “blue slips” are sent to the Senators representing the nominee’s home state.  The Senators then return the blue slip, indicating either approval or disapproval of the nominee.  If a home state Senator expresses opposition to a nominee, or refuses to return a blue slip, the Committee does not move the nomination to the floor.

The blue slip practice has a long history, going back at least one hundred years.^[3]  The first example of a Senator using a blue slip to oppose a nominee dates back to the Wilson Presidency, when Senator Thomas Hardwick (D-GA) objected to the nomination of U. V. Whipple.^[4]  Whipple’s nomination was subsequently rejected by the full Senate.

While the practice of using blue slips dates back a century, there is no consistent practice as to the effect of a negative blue slip on a nominee.  For approximately the first forty years of blue slip practice, a negative blue slip did not stop all action on a nominee.^[5]  However, in 1956, Chairman James Eastland (D-MS) modified committee policy, indicating that a negative blue slip (or failure to return one) would act as a veto on committee consideration of a nominee.^[6]In 1979, the rule changed again under new Chairman Edward Kennedy (D-MA), who stated that, in the absence of positive blue slips, he would have the committee vote on whether to proceed on consideration of the nominee.^[7]  In 1980, the Committee held a hearing on the nomination of James Sheffield despite a negative blue-slip from home state Senator James Byrd (I-VA).^[8]

In 1981, with President Ronald Reagan in office with a new Republican Senate, incoming Chairman Strom Thurmond (R-SC) announced that he would continue Kennedy’s blue slip policy, and would not necessarily view negative blue slips as reasons not to proceed on a nomination.^[9]  In 1983, Thurmond processed (and the Senate later confirmed) John Vukasin to a seat on the Northern District of California, over the objection of Senator Alan Cranston (D-CA).^[10]  In 1986, he held a hearing on the nomination of Albert Moon despite the objections of both his home state Senators, Daniel Inouye (D-HI) and Spark Matsunaga (D-HI).^[11]

In 1987, Democrats retook the majority, and Joseph Biden (D-DE), the incoming Chairman, announced a new blue slip policy.  Under Biden’s policy, negative blue slips would only block committee consideration in cases where the White House failed to adequately consult with home state Senators before choosing the nominee.^[12]  Under this new policy, the Committee processed (and the Senate confirmed) Vaughn Walker to a seat on the Northern District of California over the objection of Senator Cranston.^[13]

The Blue Slip in the Clinton and Bush Presidencies

In 1994, the “Republican Revolution” swept a new majority into the U.S. Senate, and propelled Senator Orrin Hatch (R-UT) to the Chairmanship of the Judiciary Committee.  While Hatch indicated that he would continue to follow Biden’s modified blue slip policy, in application, his policy allowed Senators could veto judicial nominations from their home state.

Notably, Senator Jesse Helms (R-NC) blocked the nominations of three Clinton choices for North Carolina seats on the Fourth Circuit, Judges James Beaty, James Wynn and J. Rich Leonard.^[14]  Similarly, Judge Helene White and Kathleen McCree Lewis, both nominated to Michigan seats on the Sixth Circuit were blue-slipped by Senator Spencer Abraham (R-MI), while Jorge Rangel and Enrique Moreno, nominated for Texas seats on the Fifth Circuit were blocked by Senator Phil Gramm (R-TX).^[15]

In 2001, when President Bush came to office, Hatch announced a modification in his blue slip policy, indicating that he would move forward on nominees, even without blue slips, provided that the White House had consulted with the home state Senators over the vacancies.^[16]

In 2003, Hatch moved the nomination of Carolyn Kuhl to the Ninth Circuit through Committee despite not receiving a blue slip from Senator Barbara Boxer (D-CA).^[17]  Later that year, Hatch moved three Michigan nominees to the Sixth Circuit over the objections of Senators Debbie Stabenow (D-MI) and Carl Levin (D-MI).^[18]  All four nominees, however, were blocked through filibusters by Senate Democrats.

In 2006, Democrats retook control of the U.S. Senate.  Incoming Judiciary Committee Chairman Patrick Leahy (D-VT) announced that he would only move on judicial nominees that had two blue slips returned.  As such, during the last two years of the Bush Presidency, a number of nominees were blue-slipped by Democratic Senators.  For example, Senators Jack Reed (D-RI) and Sheldon Whitehouse (D-RI) blocked consideration of Judge William Smith for a seat on the First Circuit.^[19]  Similarly, Senator Mary Landrieu (D-LA) blocked the nomination of David Dugas to a judgeship on the Middle District of Louisiana.^[20]

The pressure of blue slip approval forced the White House to start making “package deals” with Democratic Senators, offering them a chance to recommend nominees in exchange for their support for the White House’s picks.  In one notable instance, the Administration agreed to nominate previously blue-slipped Clinton nominee Helene White for the Sixth Circuit, in exchange for Michigan’s Democratic Senators supporting Raymond Kethledge, who had been nominated for a second seat.^[21]  In another case, the White House agreed to withdraw the nomination of Judge Gene Pratter to a seat on the Third Circuit, instead nominating Judge Paul Diamond, who was deemed acceptable to Senator Bob Casey (D-PA).^[22]

Blue Slips in the Obama Presidency

In 2009, with the Obama Administration making judicial nominations, Leahy reiterated his blue slip policy, indicating that he would not move any nominees without blue slips from both the home state senators.  This strict policy gave Republican Senators significant leverage over the Obama Administration in discussions over judicial nominations.  The first Senator to exercise the blue slip privileges was Senator David Vitter (R-LA), who blocked the nomination of Brian Anthony Jackson to a seat on the Middle District of Louisiana until the White House committed to keeping Bush-era U.S. Attorney Jim Letten on the job.^[23]  Upon a White House commitment to keep Letten, Vitter returned his blue slips and allowed Jackson to be confirmed.

While Vitter used the blue slip process to secure support for an unrelated nomination, other Senators used it to protect their prerogative to choose nominees for the state.  Senators James Inhofe (R-OK) and Tom Coburn (R-OK) used the blue slip process to block confirmation on Arvo Mikkanen’s nomination to a seat on the Northern District of Oklahoma, claiming they were not consulted before the nomination was made.^[24]  Similarly, Senators John Cornyn (R-TX) and Kay Bailey Hutchison (R-TX) refused to approve any nomination to Texas courts that was not vetted through their selection committee, cutting Democrats out of the process.^[25]  Senators Ron Johnson (R-WI) and Dan Coats (R-IN) blocked the nominations of Victoria Nourse and Myra Selby respectively to seats on the Seventh Circuit Court of Appeals, arguing that the nomination should emerge from a bipartisan nominating committee.^[26]

Other Senators used blue slips to block nominees based on substantive objections.  Senators Lindsay Graham (R-SC) and Tim Scott (R-SC) blocked Judge Alison Renee Lee’s nomination to serve on the U.S. District Court for South Carolina based on allegations that she was “soft-on-crime”.^[27]  Senator Dean Heller (R-NV) blocked the nomination of Judge Elissa Cadish for the U.S. District Court in Nevada based on her pre-Heller opinion that the Second Amendment does not protect the right to bear arms for an individual.^[28]

On rare occasions, the White House was able to successfully use leverage to force a blue-slipping Senator to give way.  Senator Robert Menendez (D-NJ), for example, was forced to withdraw his blockade of Judge Patty Shwartz for a seat on the Third Circuit under pressure from liberal groups.^[29]  Similarly, pressure from civil rights groups pushed Sen. Marco Rubio (R-FL) to return a blue slip on Judge Brian Davis’ nomination to the Middle District of Florida.^[30]

Not all Republican Senators exercised their blue-slip leverage s vigorously.  Some took a more hands-off approach, allowing the White House and their Democratic colleagues to take the lead on judicial nominees for their state.  Sen. John Boozman (R-AR), for example, supported the nominations of five Arkansas judges proposed by his colleague Sen. Mark Pryor (D-AR).^[31]  Similarly, Senators Lamar Alexander (R-TN) and Bob Corker (R-TN) backed two circuit and six district court appointments by the Obama Administration.^[32]  Additionally, they supported the Administration’s unsuccessful nomination of Edward Stanton to a seat on the U.S. District Court for the Western District of Tennessee.^[33]  Senator Roy Blunt (R-MO) returned blue slips on every judicial nominee for his state, regardless of whether he supported the nominee on the merits.  Notably, he opposed the nomination of Judge Ronnie White to serve on the the Eastern District of Missouri, and Stephen R. Bough to serve on the Western District of Missouri, but nonetheless allowed the nominees to be considered by the committee, and eventually confirmed.^[34]

Other Republican Senators used the leverage of blue slips to work out nomination deals with their Democratic colleagues.  Senators Bob Casey (D-PA) and Pat Toomey (R-PA) worked out a deal that would allow Toomey to put forward one district court judge for every three that Casey named.  Under this deal, Toomey was able to secure the confirmation of several Republican judges.^[35]   Senators Dick Durbin (D-IL) and Mark Kirk (R-IL) had a similar deal, which allowed Kirk to name a number of Republicans to the Northern District of Illinois.^[36]

In other states, the White House was forced to work out package deals with Republican Senators that would allow long-vacant judgeships to be filled.  By 2013, the overworked court in Arizona, had six out of its thirteen judgeships vacant due to an impasse between Senator John McCain (R-AZ) and the White House over the nomination of Rosemary Marquez.^[37]  Marquez was eventually confirmed as part of a package deal with five other nominees, including McCain protege Diane Humetewa.^[38]  Similarly, the White House was able to appoint David Hale, a Democrat, to the Western District of Kentucky only when paired with Greg Stivers, a Republican.^[39] 

The Administration’s willingness to work with Republican Senators on nominations was tempered by pressure from its own base.  For example, in 2013, the White House and Senators Saxby Chambliss (R-GA) and Johnny Isakson (R-GA) announced a deal that would fill two seats on the Eleventh Circuit and four seats on the Northern District of Georgia.^[40]  One of the nominees proposed by the Senators, Judge Michael Boggs, attracted fierce opposition from civil rights groups due to his anti-gay rights stances as a state legislator.^[41]  Ultimately, the White House was forced to jettison Boggs, and leave the seat vacant.

At times, even pre-approving nominees with Republican Senators did not guarantee their future support.  Notably, Senator Pat Roberts (R-KS) initially expressed support for the nomination of Steve Six to the Tenth Circuit.  However, under pressure from conservative groups, he and Sen. Jerry Moran (R-KS) came out in opposition to Six shortly after his hearing, essentially killing his nomination.^[42]  Similarly, Obama’s nomination to the Northern District of Georgia after Boggs, Judge Dax Erik Lopez, a Republican and a member of the conservative Federalist Society, was blocked by Sen. David Perdue (R-GA) after conservative groups objected to Lopez’s membership in Latino civic organizations.^[43]  Sen. Rubio blocked two nominees to the Southern District of Florida, Judge William Thomas, and Mary Barzee Flores, after initially indicating his support to the White House.^[44]

Ultimately, Leahy’s strict adherence to blue slips placed the Obama Administration in an impossible situation.  Republican Senators frequently rejected nominees proposed by the Administration while either failing to offer names of their own, or suggesting picks that were too conservative.  As negotiations over nominees fell apart, many states with Republican Senators saw vacancies linger unfilled for years.

Blue Slips in the Age of Trump

Shortly after the election of President Trump, Judiciary Committee Chairman Chuck Grassley (R-IA) announced that he would continue to honor the strict blue slip policy that Leahy set out.^[45]  This theoretically gives Democrats the same leverage over judicial nominations that Republicans had in the Obama Administration.  In previous Republican administrations, Democratic Senators generally took a hands-off approach to judicial nominations, rejecting nominees only when they were viewed as too extreme.  However, after the increased use of blue slipping under the Obama Administration, it is possible that Democrats will be emboldened to demand pre-approval of judicial nominees.  As such, the Administration may have to rely on package deals in states with Democratic Senators, agreeing to nominate Democrats to some seats on the federal bench.

Additionally, Republican Senators are themselves pushing for the renomination of Obama nominees left unconfirmed at the end of the 114th Congress.  Senators Mike Crapo (R-ID) and Jim Risch (R-ID) have already asked Trump to renominate Judge David Nye, the unconfirmed Obama selection for a vacancy on the U.S. District Court in Idaho.^[46]  Senator Toomey has asked Trump to renominate Judge Susan Paradise Baxter, a Democrat nominated by Obama for a seat on the Western District of Pennsylvania.^[47]

With Republicans in the majority, and the filibuster for lower court nominations abolished, the blue slip is one of the only tools Democrats have to temper the ideology of Trump’s judicial nominations.  While Republicans used it to great effectiveness to prevent Obama from filling vacancies, it remains to be seen how aggressively Democrats will wield the blue slip.

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