The waters of the confirmation process are troubled these days. Standards upheld under a Democratic president, we are told, are being rejected under a Republican president. Principles that governed this process for decades, even centuries, are supposedly being tossed aside. Many are asking where the process goes from here.
One part of the process that has been misrepresented, misunderstood, and misdirected involves the role of senators regarding judicial nominees who would serve in their state. Since 1917, Judiciary Committee chairmen have sought the views of those home-state senators and, almost without exception, they have been given weight but have not dictated whether the Judiciary Committee holds a hearing. This is called the “blue slip” courtesy, because senators express their views on a blue slip of paper.
On March 6, Sen. Dianne Feinstein, D-Calif., accused Republicans of “ongoing disregard for Senate norms and traditions.” In particular, she said that the majority was essentially casting aside the blue slip courtesy, holding hearings over the objection of home-state senators.
Republicans, of course, have not proposed abolishing the blue slip courtesy. In fact, Judiciary Committee Chairman Lindsey Graham, R-S.C., is implementing the policy as previous chairmen have done, emphasizing the need for the White House to consult with home-state senators before making nominations.
In a few cases, those consultations with Democratic senators have not yielded consensus. But because the Constitution gives the power to appoint judges to the president, not to senators, such good-faith consultation was sufficient for the Senate to consider these nominees.
Home-state senators can certainly, in many different ways, express their opposition to any nominee they choose. Other senators are free to ignore or take seriously that home-state senator’s opinion. But the nearly unbroken tradition of the last 102 years has been that while the blue slip courtesy provides input, it is not a veto.
The fact that Republicans are not today seeking to abolish the blue slip courtesy does not mean that no senator ever has expressed a desire to do so. In fact, for a clear and forceful argument for eliminating it altogether, Feinstein need look no further than, well, herself.
In 2001, after Democrats returned to majority status with the party switch of Sen. Jim Jeffords of Vermont, Feinstein argued that “the blue slip should hold no place in this body.” The Judiciary Committee’s duty, she said, “leaves no room for a secret block on nominees by any Member which prevents their hearing and confirmation.”
Feinstein continued, explaining how “the rationale behind the blue slip process is faulty” because it has become a way to “stop nominees for political or other reasons having nothing to do with qualifications” and the “blue slip process as it now stands is open to abuse.”
Feinstein put it as clearly as anyone could: “I would join with those…on the Judiciary Committee who would move to abolish the blue slip” and that “this is one Member of the Judiciary Committee who will happily vote to do away with the blue slip.”
There it is in the Congressional Record, June 29, 2001, on pages 12484-85. The duty of, first, the Judiciary Committee and, then, the full Senate is to “confirm or reject a nominee based on an informed judgment that he or she is either fit or not fit to serve.” Fulfilling that duty is impossible, Feinstein said, when “simply by not returning the blue slip at all,” a single senator “can stop a nomination dead in its tracks.”
Perhaps the Feinstein of 2019 would care to explain why her views have changed.
Thomas Jipping is the Deputy Director of the Edwin Meese III Center for Legal and Judicial Studies and Senior Legal Fellow at The Heritage Foundation.