The Senate’s Republican leader said on Tuesday that he will eliminate a practice that Senate Republicans used aggressively to block President Barack Obama’s judicial nominees. The practice, known as the “blue slip,” could have been eliminated while Democrats controlled the Senate and the White House. Sen. Pat Leahy (D-VT), who controlled the Senate Judiciary Committee at the time refused to do so.
The blue slip process ostensibly encourages presidents to consult with home-state senators before nominating a federal judge to serve within their state. During the Obama administration, however, Senate Republicans wielded it to veto several of President Obama’s nominees.
Blue slips are forms that the Senate Judiciary Chair uses to poll home-state senators on whether they approve of a particular nominee. Historically, different chairs have used these forms differently. Under Obama, Leahy was unusually deferential to home-state senators, refusing to schedule a confirmation hearing on any nominee that did not receive a favorable blue slip. Sen. Ron Johnson (R-WI) effectively held one federal appellate judgeship open for six years — the entire period that Johnson served in the Senate during the Obama presidency.
Other Senate Judiciary Chairs typically did not give a single senator this kind of veto power, though they often afforded some level of deference to home-state senators.
In any event, Senate Majority Leader Mitch McConnell (R-KY) told the conservative Weekly Standard on Tuesday that the Senate’s Republican majority “will treat a blue slip ‘as simply notification of how you’re going to vote, not as an opportunity to blackball.’” Thus, having benefited from Leahy’s unusually robust deference to home-state senators, McConnell now plans to end that deference now that Democrats may wish to invoke it.
It should be noted that, at least historically, the question of how to treat blue slips has rested with the Senate Judiciary Chair, not with the Majority Leader. So it is possible that Grassley could try to overrule McConnell here. Publicly, Grassley has been non-committal on the future of the blue slip, though it would be very odd for a party leader to make such a definitive statement on a matter such as the blue slip if they did not already know that the relevant committee chair is on board.
In the likely event that the blue slip is killed, Democrats may want to remember this experience the next time they are in power.