By Brandon Schall, Staff Writer
Currently, there are 144 vacancies on the federal judicial bench and 45 pending judicial nominations waiting for a vote by the Senate.[1] The Appointments Clause of the U.S. Constitution gives the President the power to nominate an individual to fill an open federal judgeship, while the Senate has the power to confirm the President’s nomination.[2] Since the early 1900’s, the Senate Committee on the Judiciary provided a blue piece of paper, otherwise known as a “blue slip,” to the home-state Senators of where the seat was to be filled.
The blue slip allowed the home-state Senators to voice their opinions on the President’s nominee to the federal bench.[3] As a rule, if a Senator does not return the blue slip of paper to the Chairman of the Senate Committee on the Judiciary, or provides negative feedback about the nominee, the President must take the Senator’s opinion very seriously and may reconsider the nomination of that person.[4] If that President still decides to nominate that person without approval of the home-state Senator, then the Chairman has to decide whether to move forward with a vote on the nominee.[5]
The first formal practice of the blue slip rule was noted in 1917 and has continued since then.[6] Since 1953, the American Bar Association standing committee on the Federal Judiciary has vetted judicial candidates and provided the President and Senate Judiciary Committee with a recommendation.[7] Regardless of their qualification by the ABA, a Senator has no obligation to return the blue slip on a nominee[8]; however, it is consistently held that the Senators from the individual’s home-state will at least have a right to provide feedback about the nominee.
In recent years, the confirmation process for federal judges has become more political. Both sides have accused the other of playing political games by delaying votes. With the growing number of open seats on the federal bench, Republican senators are considering a change to the blue slip rule to speed up the process. The most recent debate has been about whether the rule applies to circuit court judges or whether the process should only apply to district court judges[9].
Each Chairman of the Senate Judiciary Committee has the authority to change the procedure.[10] The blue slip process has changed slightly after shifts in leadership.[11] Generally, though, the blue slip rule has allowed a Senator to block the nominee by either not returning the blue slip or returning it with a negative opinion.[12]
From 1917 through 1955, the policy allowed home-state Senators to state their objections before the Senate voted on confirmation.[13] From 1956 through 1978, a single home-state senator could stop all committee action by failing to return the form or by objection.[14] From 1979 through 1989, a home-state Senator’s failure to return the blue slip would not necessarily prevent the committee from taking action on the nominee.[15]
In 1989, the Chairman stated that one negative blue slip would be “a significant factor to be weighed” but would “not preclude consideration” of a nominee.[16] If both home-state Senators returned negative blue slips, the committee would take no action.[17] This practice remained in tact until June 5, 2001. From June 6, 2001 to 2003, the process shifted slightly when the Chairman allowed action only if both home-state Senators returned positive feedback.[18] The latest iteration came in 2003—a return of a negative blue slip by one or both senators does not prevent the Judiciary Committee from moving forward if the Administration has discussed their nomination with both of the home-state Senators.[19]
As of July 9, 2017 no Senate Democrats have returned a blue slip on President Trump’s federal judicial picks.[20] Chairman Grassley (R-Iowa) has considered whether to change the current practice of the blue slip rule; however, the Chairman and Sen. Feinstein, the committee’s top Democrat, have had ongoing disputes over the policy.[21] Sen. Bob Casey (D-Pa.) reportedly returned a blue slip for Stephanos Bibas to fill a judgeship on the U.S. Court of Appeals for the 3rd Circuit.[22]
Sen. Casey’s return of the blue slip means that the Senate Judiciary Committee is likely to move forward with a vote on the nomination, while many others still wait consideration. If the Senate cannot address the blue slip rule, the United States Federal Courts may soon see over two hundred empty seats.
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