In light of today’s controversy over Sen. Richard Shelby’s hold on 70 nominations (here) due to a disagreement over Air Force tankers, this 2001 column may be of interest.

Seeing Red on Blue Slips

Congress is on fire over blue slips. In fact, we haven’t had so much discussion of blue slips in Washington since J. Edgar Hoover was exposed as a cross-dresser.

This may sound like another bizarre Beltway battle, far removed from most people’s lives. But “blue slipping” could not be more serious for individual citizens.

Blue-slipping is a little known process by which senators can block federal judge nominees from their state. This means that the judges who may rule in your case often are selected to meet senatorial, not professional demands.

By simply not returning blue slips sent by the Senate Judiciary Committee, a senator can block a nominee for the most nefarious or arbitrary reasons, including a personal grudge, a bargaining tool with the White House or a failure of the nominee to be sufficiently fawning in the senator’s presence.

Like all new administrations, the Bush administration is seeking to change rules that it views as archaic or inefficient. But Bush officials have discovered that wresting away a senatorial perk is like trying to kill the free sandwich truck in a Teamster contract: You do so at your own peril.

Democratic senators defend the anti-democratic tradition of blue slipping in quintessential Washington terms: You cannot take away a privilege that we gave ourselves and enjoyed for decades. Blue slipping would make a petty despot blush. Portrayed as a “senatorial courtesy,” this system is a mutation of our constitutional traditions.

The Constitution gives the president the sole discretion of making nominations and gives the Senate the power of “advise and consent” in approving or rejecting them. For decades, the Senate has used this power to create a nonpublic system that gave individual senators tremendous discretionary power.

It is not that the system of blue slipping has been uniformly abused; it has not been. Many senators have used this authority in a judicious and fair way. We should not, however, have a system that depends on the good judgment and good graces of the individual members to function correctly.

With more than 100 open judicial slots (including 30 coveted appellate judgeships), President Bush could create a lasting conservative legacy on the courts–assuming that the practice of blue slipping is brought to an end.

Even if the Senate were to enforce a past rule that both senators of a given state must agree to blue slip a nominee, 18 states currently have two Democratic members. The potential effect of blue slipping in these states is no more obvious than in California, where Sen. Barbara Boxer has already succeeded in delaying the nomination of Rep. Christopher Cox (R-Newport Beach), a conservative with a distinguished legal background. Sen. Dianne Feinstein has not said whether she will join Boxer’s opposition.

In fairness to the Democrats, the Republicans only came to this enlightened position after the Senate split 50-50. The Republicans realize that there is a significant chance that they could lose the Senate majority before or by the 2002 elections. If 98-year-old Sen. Strom Thurmond (R-S.C.), for example, were to be unable to complete his term, he would likely be replaced by a Democrat, and power would shift in the Senate.

Yet even accepting the charge of opportunism, this only means that the Republicans are doing the right thing for the wrong reason. As senators don’t often suggest the elimination of a perk, we should not tarry in accepting the offer.

Nothing in the Constitution prevents such informal, nonpublic procedures as part of the Senate’s confirmation process. Yet good government and democratic traditions should prevail. In matters of the Constitution and of style, blue slips and black robes simply clash.

Los Angeles Times: May 16, 2001