Blue slip abuse in the Senate Judiciary Committee is the latest tactic of political retribution. Judicial nominees are held up because someone in the Senate’s minority leadership persuades a home state senator to block confirmation. We saw plenty of this in 2005-06 when Democrats withheld blue slips and used other tactics to block President Bush’s nominees, and Republicans are doing it now.
Politicians of both parties on the federal and state levels play games of tit-for-tat over and over again. Perhaps they enjoy it. But how about the person who spends hours looking at someone else’s license plate in New Jersey instead of getting to work on time? How about the person whose case is delayed for months or years in federal court because there are not enough judges?
This will not stop until voters make it clear that they have had enough
Blue Slip Abuse Should Stop
By Richard W. Painter
http://www.acslaw.org/acsblog/why-blue-slip-abuse-should-stop
Senator Rubio of Florida is now one of the strongest contenders in the GOP for president. He is qualified and likeable and thus far has a clean record on ethics. One or more of Rubio’s Senate colleagues also might have a shot at the nomination. There are other good candidates as well. And Republicans, if they can get their act together, have a very good chance of electing a president in 2016.
One of the most important things a new president will do is appoint judges, the job that our current president has been trying to do for the past five years. The president will need the advice and consent of the Senate to make these appointments, but courts need judges, and presidents and senators have an obligation to make sure vacancies on courts are filled.
And the place where senators should care most about filling judicial vacancies should be their own home states. The interests of constituents in access to judges and justice should be a priority over playing partisan politics.
And this is why, until recently, it usually was not a problem for the Senate to allow home state senators an informal veto—implemented through the so called “blue slip” process—over confirmation of judges in their own states. Senators might try to block nominees from other states with filibusters and other tactics, but would protect their own constituents by working out a deal with the White House for nomination and confirmation of an acceptable nominee in their state.
Then came the long overdue demise of the filibuster—an embarrassing tactic used to block civil rights legislation in the 1960’s and to block some of President George W. Bush’s judicial nominees in the early 2000’s. When the same tactic was then used to block some of President Obama’s nominees, the majority of senators realized in 2013 that such antics were bringing discredit upon the Senate and that they had to put a stop to the filibuster with a change in the Senate rules (I recall urging such a change when I was in the Bush White House, but at least it has finally come about, albeit in very different political circumstances).
And now, without the filibuster, some senators are using the “blue slip” process to block nominees, both in their own states and elsewhere when they put pressure on colleagues to refuse to return the blue slips that the Judiciary Committee sends to home state senators seeking their approval of nominees. When these home state senators don’t sign off, the nomination is likely never to be reported out of the committee.
There is plenty of blame to go around for this mess. First, the Obama administration needs to do a better job of finding nominees who are likely to be acceptable to home state senators. Simply not nominating anyone for an open judgeship is not the answer. It is not surprising that many of the district and appellate court vacancies without nominees are in states such as Texas with GOP senators. The president, however, needs to insist that these Senators engage with the White House in dialogue about who might be an acceptable nominee, and if dialogue is unsuccessful despite these efforts the president should nominate someone he believes the Senator would be unreasonable to oppose.
Second, senators should make an honest effort to discuss with the White House their views of who is and is not an acceptable nominee in their home state. They should not confuse the informal veto bestowed by the Senate’s blue slip process with the power to select the nominee. That power the Constitution clearly puts with the president—it is the senators’ power to advise the president and to decide whether to confirm the president’s nominees.
Third, senators who have indicated their support for a nominee should not go back on their word—or at least not refuse to return the blue slip—after the White House has made the nomination, unless substantially important new information comes to light about the nominee. The most high-profile blue slip battles have been in North Carolina and Florida. In Florida, William Thomas was not renominated because of Sen. Marco Rubio’s objections. In North Carolina, Jennifer May-Parker’s nomination has been held up because Sen. Richard Burr refuses to return his blue slip. In both cases, the nominees were originally supported by the Senators.
Finally, senators should look after the interests of their home state constituents in the blue slip process. They should not cave into pressure from fellow senators or to their party leadership to use blue slips as part of a broader effort to block the president’s nominees. Home state constituents should not be denied access to judges and justice because a group of senators schemes to use blue slips to replace the filibuster.
We learned recently that creating traffic jams is not an appropriate instrument of political retribution. Neither is jamming up the process for nominating and confirming federal judges.