Time for Congress to end the abusive ‘blue slipping’ process

Blue_slip_Hardwick_Whipple_US_CongressBelow is my column in the Hill Newspaper on the need to end “blue slipping” in the United States Senate.  I have long criticized the “courtesy” allowing a single senator to block a nominee as inimical to our constitutional system. I have maintained this position throughout both Democratic and Republican administrations.

Here is the column:

The United States Senate is fond of calling itself the “world’s most exclusive club” and “the world’s most deliberative body.” Those two accolades are often in conflict. While the Senate is fond of its “deliberations,” most of the real decisions are made well outside of the public eye. Confirmation hearings are often little more than staged events with scripted lines and predetermined outcomes. One of the most significant limits on open and deliberative debate is a Senate “courtesy” called “blue slipping.” It is the process by which a single senator can prevent the confirmation of a judicial nominee in his or her state.

For more than a decade, I have called for the end of blue slipping as a nondemocratic device commonly used for improper or abusive purposes. Now, Judiciary Chairman Chuck Grassley (R-Iowa) is warning about the possible curtailment or even ending of the practice. It would be a welcomed change. While it would end a “club” courtesy, it would actually make the Senate of a more deliberative body. The term “blue slipping” comes from the blue slips sent to senators for positive or negative comments on a nomination. To refuse to sign off, or to “withhold the blue slip,” means that the nominee is left without a path to the Senate floor.

Senators have long argued that this informal rule merely acknowledges that senators have special insights into nominees from their own states and that their citizens have a special stake in the qualifications of such nominees. Of course, there is no reason why a senator could not state such reservations to his or her colleagues, views that would clearly be given special weight in the final vote. Blue slipping, however, was designed to invest unilateral and unchallenged authority in each senator.

Senators often talk of blue slipping as if it were an essential part of our constitutional process. In reality, blue slipping conflicts with core constitutional values of the democratic process. It is also a rule that has changed through the years and not for the better. In its first incarnation in 1917, the blue slip allowed senators to oppose a home state nominee and the committee would report the nominee to the full Senate “adversely.” That was the courtesy, but the Senate would still vote on the nominee and the opposing senator could state the objections before the full body and the public.

In 1956, however, the current blue slip system was created by Judiciary Chairman James Eastland (D-Miss.) for the worst possible reason. The country was in the midst of the civil rights movement, and Eastland was opposed to desegregation policies, particularly school desegregation. If a nominee was in favor of such desegregation, Eastland would lower the boom by withholding the blue slip. That system continued until 1979 when Judiciary Chairman Ted Kennedy (D-Mass.) announced that the Senate would not agree to giving members unilateral power to block a nominee. The senator’s opposition would simply be considered as part of the Senate vote. That was changed in 1989 to allow a full block if both senators from a given state issued negative blue slips on a nominee.

That system continued until 2001 when Judiciary Chairman Patrick Leahy(D-Vt.) reinstated the Eastland blue slip procedure to allow any senator to block any home state George W. Bush nominee. Leahy insisted that “the home state senators who know the needs of the courts in their state best are consulted and have the opportunity to make sure that the nominees are qualified.” In reality, the “needs of courts,” which are qualified nominees who will apply the law without bias or predisposition, are the same regardless of the state. There is no difference between a highly qualified nominee in Maine or Michigan or Texas.

In the worst cases, the blue slip allows is for senators to secure judicial positions for party faithful or personal friends, including relatives. Both parties have abused the privilege in this way. This is not to say that the system is always used for such purposes, but it is ripe for such abuse. In some cases, blue slips are withheld just to pressure the White House on legislation or other appointments. It has also been used on pure questions of ideology rather than intellect. Indeed, that is the very abuse that led to the creation of the rule under Eastland. Grassley has now warned his colleagues that he will not allow the blue slip process to be abuse, including the use to block nominees solely because they are conservatives.

The informal rule demanding consultation by the White House of home state senators is commendable. However, the power to unilaterally block a nominee is unfair to nominees and inconsistent with our constitutional system. The Framers never intended to invest an individual senator with such authority. To the contrary, the Framers, and particularly James Madison, were acutely aware of the dangers of factional and personal interests in government. They sought to combat such influences by avoiding the concentration power in the hands of individuals or even individual branches.

Some of these same arguments have been raised in opposition to filibuster power, which is also a power created outside of the Constitution that gives enhanced power to a minority of senators. However, the filibuster requires 41 senators, not a single senator, to block a nominee. Ironically, Democrats killed filibuster power on nominations as inherently abusive, except for Supreme Court vacancies. This year, Republicans got rid of the exception for Supreme Court nominations to secure the confirmation for Neil Gorsuch. Despite both Democrats and Republicans voting against filibuster power, they still cling to a far more questionable power allowing a single senator to block a nominee.

Calling this a “courtesy” does not lessen the constitutional concerns. A “courtesy” is insisting on senators by their state rather than their personal names on the Senate floor. That is a charming and civil custom. This is less a courtesy as it is a blackball system. It is time to end the Eastland blue slipping process.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

48 thoughts on “Time for Congress to end the abusive ‘blue slipping’ process

    • Darren Smith – it appears that some have seen the handwriting on the wall and are leaving on their own. Although Flake has spun it like he is doing something patriotic, rather than getting his rear kicked in the primary.

  1. Politicians are reluctant to dispose of an instrument of power. They will always want to have the ability to use it when conventional means will result in an outcome they oppose.

  2. The U.S. Senate is a godawful institution and it should be radically restructured or abolished. The blue slips, the holds, the filibuster are all indicative of a collection of self-absorbed donor-minions who care very much about their petty prerogatives but little about good policy.

    1. Have one senator per state elected by the state House caucus, with state governors acting as tie-breakers. Said Senator would then serve a 4 year term concurrent with House members elected for 4 year terms. You could elect a sitting House member who would retain his floor vote but sit in the Senate in lieu of committee work in the House, or you could elect someone from outside Congress who had a baseline history of palpable residence in the state and a baseline history of positions held in the federal executive.

    2. Functionally differentiate the House and the Senate. The former concerns itself with legislation and the latter with oversight (which would include vetting and recomposing administrative regulations proposed). Legislation passes into law with the vote of a majority of the elected members of the House, with the yeas and nays recorded and only with the yeas and nays recorded. The role of the executive in the legislative process is be limited to negotiating treaties for submission to the House, drafting administrative rules for public comment and submission to the Senate and producing default appropriations bills which pass into law if the House fails to finish its work on time.

    3. Limit advice and consent functions to positions outside the executive branch, positions inside the executive branch which serve fixed terms and are properly cumbersome for the President to fire (e.g. regulatory and oversight commissions, inspectors-general, and bureau chiefs concerned with policing, regulation, tax collection, intelligence collection, and oversight).

    4. Devolve advice and consent re federal district judges and U.S. Attorneys to the state legislatures.

    5. Vest advice and consent for any other official in the House, with an option to delegate the vetting of certain offices to the Senate.

    6. Rotation in office please. No one elected to supralocal offices who is not between the ages of 39 and 72 on the day of the election and no one holding a given office for more than 10 years in any bloc of 12, no one standing for election to an office if he will reach that tenure limit during the succeeding 4 years, and no one elected to the Senate who was, at the time of the most recent federal election, ineligible to stand for election to the House.

    7. Judicial or executive review of parliamentary rules. Have a default set of parliamentary rules enacted as an appendix to the Constitution. Allow the Supreme Court or the President or the Comptroller-General to impose these in lieu of discretionary rules enacted by the legislative body in question upon a petition of a critical mass of members.

      • If it’s in black letters, it should be respected unless principles of stare decisis intervene. They very seldom do. You could construct an argument that paper money, the Federal Reserve, and Social Security are unconstitutional, but you’d never want a federal judge attempting to impose that policy by judicial ukase.

        The foregoing would require constitutional amendments. Walter Berns was once asked what amendment he would prefer to the Constitution, he said he would like an amendment to prohibit future amendments. It’s a reasonable wager that Walter Berns was wildly overrated as a thinker.

    • A&AWG – your point #1 is the way the Senate was composed prior to the 17th Amendment. Call for its repeal and return the Senate to the States. It restores the founders intent and has the great benefit of making State elections matter once again. Think it through. It’s not crazy talk!

  3. Trump and the Republican party have been pushing thru a man who is married to a White House counsel with being a lawyer for only 3 years to a life time appointment to be a federal judge, that has never tried a case. Therefore we should invoke the Mitch McConnell rule and stop all appointments in this term of this President. Until we find out who is connected to the Ruskies or not. OK, I’m dreaming because I know and you know that this Republican party today only cares about party over country.

  4. Turley

    It’s great that you have maintained your position throughout administrations of both political parties. That’s admirable.

    But I’m curious about something. When was the last time you penned a column on this topic for a newspaper like this one? Did you write a column like this when the Republicans were jamming up Obama’s judicial appointments? Or are columns like this reserved for when Democrats are jamming up Trump’s judicial appointments?

      • I know and you know that this Republican party today only cares about party over country.

        BINGO? Doesn’t quite square with the assumption that you’re for country over party, now does it? Either the practice is bad or it’s not. Which is it?

    • May 2001. Turley wrote about and supported the effort of Bush to ask the Senate to change the blue slip rule because of the abuse of the “courtesy” during the Clinton admin.

      I know that some twit will say “You idiot. Bush was president in May 2001.” But Bush had not yet had nominees “blue slipped”. Repeat, the Senate had not yet used (or abused) the courtesy against Bush. YET Turley wrote and railed against the courtesy back then because of the abuse during previous, and Democratic institutions.

      Don de Drain and Fish Wings please apology to Prof Turley for your uninformed, partisan and clearly emotional reaction to the truth that he speaks and that you cannot accept.

      • JT has done nothing but whip up his echo chamber with his posts. He spins distracts deflects anything and everything about Trump he can. I would love to see him go back and talk law, his posts are to his right wing base and you know it. Please pay attention to his posts about any thing HRC and see them come out in droves. JT has gone for tribal politics and its working for him.

        • Fishwings, maybe Turley has grown weary of “his right wing base.” If so, he could be reaching for the reset button with his current post on blue-slipping, so he can “go back and talk law.” Or not. Let’s see what Turley posts tomorrow.

          • I hope so, It was not to long ago that he tried to split it down the middle, myself and others are exhausted that if anybody writes anything one degree from center of rightwing you get attacked and required to echo their point of view. I have many Republicans friends and have known them for years, I do not hear them talking in ways I see here.

            • Fishwings, maybe the mighty righties are just upset that Turley’s not defending Roy Moore. Or, to be more precise, that Turley’s not attacking Moore’s accusers the way they want him to do.

              P. S. Think of Turley as the anonymous narrator in Poe’s “The Pit and the Pendulum.” And we “press agents of the DNC” are the rats who have to gnaw through his bindings so he can go back and talk law, again.

              Holy Toledo. Who’s going to warn Turley about the pit [Trump, that is]? Are the walls closing in yet? Where’s Napoleon’s army when you need it?

        • And yet you read them. Surely you know you can cancel your subscription at any time and get the remainder of your fee refunded.

      • Why should I apologize for asking if he walks the walk in addition to talking the talk? Thanks for pointing out what you did.

    • Congress is under no constitutional obligation to approve anyone’s judicial appointments. The problem here is that Senatorial ‘courtesy’ allows 1 or 2 members of the body to bloc an appointment. It’s madness.

      Advice and consent for federal district judges and U.S. Attorneys is properly devolved to state legislatures. Short of that. appointments to the federal bench, to ambassadorships, to trusteeships and to the position of U.S. Attorney should be heard by ad hoc committees. The appointment arrives, the majority leader picks 4 names out of a hat from his caucus and the minority leader picks 3 names out of a hat from his caucus and that ad hoc committee holds the confirmation hearings and then reports yea or nay to the Senate floor. We’d also be better off if, aside from these sorts of positions, the number of federal offices subject to advice and consent was limited to about 350. That way, the Senate committees with jurisdiction would vet a mean of 7-8 appointments per year (mostly to boards and commissions serving fixed terms).

      • AAWG said, “Advice and consent for federal district judges and U.S. Attorneys is properly devolved to state legislatures.”

        Would that require an amendment to the Constitution? You know, The President losing the power to nominate judges and such?

        • I don’t think it’s a stretch as the Constitution requires advice-and-consent for cabinet secretaries, ambassadors, and the superordinate positions in the federal judiciary only.

          • So, under your Plan A, The President would still nominate judges and the like. It’s only the U. S. Senate that would cede the power to advise and consent to the state legislatures???

            The relevant provision of the Appointments Clause is:

            He [the President] … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

            I still think you’ll need a constitutional amendment for your Plan A: “Advice and consent for federal district judges and U.S. Attorneys is properly devolved to state legislatures.”

          • And let’s not forget advise and consent at the federal level is neither wanted, sought or used in putting treaties into effect under one many rule. As long as the One is a Democrat. What else do you expect wen you vote for left wing fascist single party system of progressively regresssive socialism.

            It’s only when it’s convenient to the ‘separate ruling class, the establishment, the pay for players, and the aristocracy.

            And only when you don’t live in a Constitutional Reublic but a POS democracy.

    • It’s a long-running whine here (and one of Nutchaha’s signatures) that Turley isn’t a press agent for the DNC and doesn’t think like one.

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