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Slipping The ‘Blue Slip’ Noose

Chuck Grassley
Sen. Chuck Grassley. Photo by Gage Skidmore.

Back in 2013, I said in this space that the Democrats would one day rue invoking the so-called “nuclear option” in the Senate.

That inevitability has come to pass, and the now-minority party is in danger of losing one of its final levers of influence in the absence of the filibuster powers its members jettisoned.

Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, has elected to ignore blue slip objections for certain judicial nominees. The blue slip is an opinion offered by one or both of the judicial nominee’s home state senators, which consists of either a favorable or an unfavorable opinion of the nominee. At different points in history, an unfavorable blue slip could stop all action on a nomination or merely inform the committee’s decision. And senators do not have to return a blue slip at all; withholding a blue slip often left nominees without a path forward to the Senate floor, effectively killing the nomination. Senators do not have to state a reason for withholding a blue slip.

Blue slips are not mandated by the Constitution, and in fact did not exist as we know them until 1917. They are considered a “courtesy,” mainly a matter of tradition.

This year, Senate Democrats have treated the blue slip process as an ersatz veto on conservative judicial nominations. Or they tried, until Grassley announced he would schedule a hearing for a pair of nominees despite attempts to obstruct them using the blue slip process.

“The Democrats seriously regret that they abolished the filibuster, as I warned them they would,” Grassley said in a speech on the Senate floor. “But they can’t expect to use the blue slip courtesy in its place. That’s not what the blue slip is meant for.”

Grassley has a point. It makes no sense, other than as a matter of congressional custom, to continue to let individual senators, particularly in the minority party, effectively hold a veto over judicial nominees for their states. And as Grassley pointed out, the process makes even less sense for the circuit courts, which preside over multiple states. Both of the hearings Grassley scheduled were for circuit court nominations.

When I first covered Congress for The Associated Press in the early 1980s, the blue slip custom nominally extended only to senators from the majority party (at the time, Democrats). New York’s Democratic Sen. Daniel Patrick Moynihan, as a matter of courtesy, would extend the blue slip privilege to his Republican counterparts – first Jacob Javits and later Al D’Amato.

In those days, the federal judiciary was respected as a largely nonpartisan institution. That respect began to erode with the Supreme Court nominations of Robert Bork and Clarence Thomas. It has continued to steadily dissolve to this day, culminating in Harry Reid’s nuclear trigger and Mitch McConnell’s counterstrike in approving the Supreme Court nomination of Neil Gorsuch.

So it should come as no surprise that Grassley is pulling the blue slip from obstructionist Democratic senators, starting with Al Franken, from neighboring Minnesota, who said outright in a statement on Facebook that he would withhold the blue slip indefinitely because of nominee David Stras’ conservative views. Franken’s attempts to block Stras’ nomination to the 8th U.S. Circuit Court of Appeals may turn out to be the last substantive congressional effort he ever makes, now that his mistreatment of women has been dragged into the public spotlight. Either way, other Democrats will surely note that withholding a blue slip indefinitely, especially for a circuit court nomination, will no longer serve as a filibuster substitute.

Kyle Duncan, the other circuit court nominee whose hearing Grassley announced, was not a potential blue slip casualty; Sen. John Kennedy, R-La., returned a blue slip on Duncan, though he noted that he was undecided on Duncan’s nomination at the time. At least four other Democrats have not yet returned blue slips for circuit nominees.

Grassley has not ended blue slipping outright, at least so far. But his effort to unclog the judicial confirmation process is welcome nonetheless.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, The High Achiever’s Guide To Wealth. His contributions include Chapter 1, “Anyone Can Achieve Wealth,” and Chapter 19, “Assisting Aging Parents.” Larry was also among the authors of the firm’s previous book Looking Ahead: Life, Family, Wealth and Business After 55.

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