This morning, the Weekly Standard released an interview with Senate Majority Leader Mitch McConnell, focusing on judicial nominations. Among various pronouncements, McConnell declared in the interview that blue slips “won’t be honored at all.” Various pundits seized upon this, declaring “a serious escalation in the judicial wars” and that the confirmation process has been eased for “Trump’s most ideological judges.” Despite the declaration from McConnell, there are two reasons to believe that reports of the blue slip’s death have been greatly exaggerated.
First, consider the source of the statement. As much as he may wish it so, Mitch McConnell does not control blue slips (if the majority leader had such control, it is likely that then-Majority Leader Harry Reid would have killed blue slips in the Obama Administration). Rather, the blue slip in the Judiciary Committee tradition, and as such, its future rests in the control of the Committee leadership. So far, Chairman Chuck Grassley has offered no comment on McConnell’s statement, suggested either: Grassley’s not on board; or Grassley is supportive but was not consulted before McConnell’s interview. Either way, it doesn’t look like McConnell’s remarks are part of a coordinated assault on the blue slip.
Second, none of the relevant parties in question: the White House; the Judiciary Committee; or Senate Democrats, are acting like blue slips are on their deathbed. The White House has studiously avoided nominating judges in states with Democratic Senators. The Judiciary Committee has held off on hearings from any nominee that does not have two positive blue slips (it avoided a golden opportunity to challenge blue slips by holding a hearing on Justice David Stras next week, instead going with Greg Katsas who has no blue slip issues). Senate Democrats have not yet reacted to McConnell’s statements (as would be imminent if blue slips were truly gone).
So, if blue slips are not dead, why would McConnell declare it so. I can think of three reasons: first, to persuade restive conservative groups that Republicans are serious about judicial nominations; second, to pressure recalcitrant Democrats into returning blue slips; and third, to prepare the groundwork for a future assault on the blue slip. As such, it is better to think of McConnell’s comments as the first salvo in the battle, rather than a declaration of the outcome.
One final comment: if McConnell and Grassley do choose to axe blue slips, it will be one of their most strategically foolish decisions. As much as the Judicial Crisis Network may pretend otherwise, the blue slip is one of the greatest gifts that Republicans have. This is because, over the last four Administrations, it is Republicans who have successfully wielded blue slips. For example, in the Obama Administration, seven appellate nominees were partially or successfully held up through blue slips, compared to just five in the Bush Administration. Out of the vacancies left at the end of the Obama Administration, a whopping 33 can be tied partially or directly to blue slips. In comparison, just 12 vacancies at the end of the Bush Administration can be tied to blue slips. So far, the Trump Administration has 50 judicial nominees pending before the Senate. Out of those, exactly three face blue slips issues (and in each of those cases, Democratic senators are willing to substitute equally conservative nominees that they have agreed upon). So, as such, why change the rules of a game you’re winning? If McConnell does end up axing blue slips, he’ll have gained virtually nothing (other than more cloture votes, fewer time agreements, and a longer, more exhaustive calendar) and will have lost his best tool for keeping liberal judges off the bench.