The Senate Should Retire Blue Slips to Veto Judicial Nominations

The federal judiciary currently has 68 vacancies, with another 23 on the way. But the White House has only announced nominees for 28 of those slots. Given the abundance of qualified candidates, one might reasonably ask why 63 slots lack a nominee. The answer lies in part in a Senate practice known as “blue slips.”

When the president nominates someone to become a federal judge, the Chair of the Senate Judiciary Committee solicits the views of the relevant state’s senators. The paper the chair uses is blue, hence the name “blue slips.”

Home-state senators have no formal power to block a nominee, and past Judiciary Committee Chairs have given different weight to their recommendations. But Senator Dick Durbin, the current Judiciary Committee Chair, will not consider judicial nominees at the district court level unless both home-state senators return a supportive blue slip, effectively giving each senator veto power.

The current blue-slip requirement prevents many qualified nominees from even getting considered, as the White House is reluctant to announce nominees unless it is certain that home state senators will support them. Of the 63 vacancies without a nominee, 39 are in states with two Republican senators and 37 of those are district court vacancies. Those vacancies strain judicial resources and exacerbate the increasing divide between courts in blue states and those in red states. Durbin should end the use of blue slips.

Blue Slips’ Troubling History

Blue slips haven’t been around forever. According to the Congressional Research Service, their first known use traces to the 65th Congress in 1917. From 1917 to 1955, blue slips were used merely to request the opinions of home-state senators. One negative blue slip didn’t prevent the Senate from considering a nomination.

That changed in 1956, when Senator James Eastland became the Judiciary Committee’s chair. Eastland first implemented the requirement that both home-state senators return a positive blue slip before a nomination could proceed. He did so, at least in part, to try to preserve segregation.

After Eastman stepped down as Judiciary Committee Chair in 1978, the treatment of blue slips varied. Some chairs declined to consider nominees absent two supportive blue slips, while others allowed nominations to proceed, treating a negative blue slip as one factor to be weighed against others.

During President Donald Trump’s administration, Senators Chuck Grassley and Lindsey Graham confirmed sixteen Circuit Court nominees over the objection of home-state senators, and the GOP Senate eventually scrapped the use of blue slips all together for circuit court nominees

Current Practice and Its Effects

Under Durbin, the Judiciary Committee will consider only nominees that receive supportive blue slips from home-state senators, unless support is withheld based on the nominee’s race, gender, or sexual orientation. This retention of blue slips as a requirement permits individual senators to effectively veto candidates for vacancies in their states, even when the objections are unrelated to a nominee’s merits.

Sharp regional differences in the confirmation process have resulted. While President Joe Biden has confirmed over 100 judges to federal district courts, the vast majority are for vacancies in states with Democratic senators.

Biden hasn’t confirmed a district judge in Texas—and has no pending nominees—even though the state has eight current vacancies, six of which have been identified as “judicial emergencies.” The story is similar in Florida, which has seven pending vacancies, three of which are emergencies.

Allowing vacancies to go unfilled strains the judiciary’s resources. Federal judges play a crucial role in our constitutional system, and they often must oversee hundreds of cases at a time. Simple math dictates that, when there are fewer federal judges, the time devoted to each case will decrease—or the time it takes to resolve each case will increase—to the detriment of litigants and non-litigants alike.

But abuse of the blue slip process also threatens to increase homogeneity within states while also heightening regional divides. If senators permit only presidents from their party to appoint judges, then ideological diversity will weaken over time.

Such diversity improves decision-making. As Supreme Court Justice Benjamin Cardozo once said, “out of the attrition of diverse minds there is beaten something which has a constancy and uniformity and average value greater than its component elements.”

If the blue-slip process produces only like-minded judges in a state, then the process Cardozo described cannot occur. And differences between states will produce divergent results for each region, potentially threatening the uniform application of federal law.

Senate Should End Current Use

Durbin shouldn’t permit blue slips to veto judicial nominations. Our constitutional system empowers the president to appoint federal judges with the “Advice and Consent of the Senate,” not the approval of individual senators. Consent was entrusted to the entire Senate for a reason. Federal judges must decide constitutional and statutory questions of national importance.

Many constitutional provisions—such as federal courts’ diversity jurisdiction over disputes between citizens of different states—anticipate that federal judges will transcend regional differences. Allowing regional differences to control the nomination process threatens to undermine those aims of uniformity and neutrality.

No benefits offset blue slips’ disadvantages. Supporters of the practice point to tradition and collegiality. But the tradition started for the wrong reasons, has been inconsistently maintained, and may be abandoned in the future, as it already was for circuit court nominees. Moreover, collegiality among senators should not trump the need for a fully staffed, ideologically diverse judiciary.

Blue slips should be one factor when considering a judicial nominee, not a prerequisite for consideration. Current policy elevates Senate practice over constitutional procedure and access to justice. Senate practice should evolve, so that critical vacancies can be filled across the country.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Caleb Hayes-Deats is a member of the American Constitution Society and Pro Bono Co-Chair of its Washington, DC Lawyer Chapter.