Blue Slips and Red States

Hatch defeats ill-advised proposals to expand powers of individual senators

Divisions among Republican senators meant that their 55-seat majority in the Senate at the outset of Bill Clinton’s second presidential term did not readily translate into collective power to block Clinton’s judicial nominees. Under the Senate Judiciary Committee’s longstanding “blue slip” practice, individual Republican senators had real clout over Clinton’s judicial nominations in their states. But the limits of the blue slip spurred some Republicans to entertain two extraordinary but little-known proposals that would have radically expanded the power of individual senators over appellate nominations. One of those proposals was defeated by a single vote.

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According to a Congressional Research Service report, the Senate Judiciary Committee’s obscure blue-slip practice dates back to 1917. Under that unwritten practice, the committee chairman invites home-state senators of both parties to express their approval or disapproval of each home-state judicial nominee on a sheet of paper (originally blue) that they return to the chairman. Different chairmen have varied on whether a negative blue slip would necessarily doom a nomination or just be given heavy weight—and since late 2017 the blue slip for appellate nominees has been demoted to a much lesser role. But (per another CRS report) in the several decades before Bill Clinton became president, only three judicial nominees had been confirmed by the Senate without getting positive blue slips from both home-state senators.

It’s much easier to understand why the blue-slip practice applied, and continues to apply, to district-court nominees (as well as to United States Attorney nominees) than why it applied to appellate nominees. If there is a single point that all senators could agree on, it is that no senator should have his political enemy preside over his corruption trial. More broadly, federal law assigns district judgeships to districts in particular states, and the work of a federal district judge, especially in the criminal docket, predominantly relates to the state in which the judge sits.

By contrast, federal law does not assign a circuit’s seats by state. (As a general rule, existing seats remain where they are—if a Ninth Circuit judge sitting in California resigns, the judge’s successor will be in California—and the White House and the Senate work out where new seats will be located.) The work of a federal appellate judge has no special connection to the state in which the judge’s chambers happen to be located. Appellate judges from different states in the same circuit take part equally in the cases arising from the district courts across those various states.

When Orrin Hatch became chairman of the Judiciary Committee in 1995, he announced that he would follow the same blue-slip policy that his Democratic predecessor Joe Biden had spelled out—namely, that a negative blue slip would be a “significant factor to be weighed by the committee in its evaluation of a judicial nominee” but would “not preclude consideration of that nominee unless the Administration has not consulted with both home state Senators prior to submitting the nomination to the Senate.” In response to complaints from Republican senators that the White House had not adequately consulted with them, Hatch sent a letter to the White House early in 1997 that identified five things that would “demonstrate an absence of good faith consultation” by the White House:

(1) failure to give serious consideration to individuals proposed by home state Senators as possible nominees;

(2) failure to identify to home state Senators and the Judiciary Committee an individual the President is considering nominating with enough time to allow the Senator to provide meaningful feedback before any formal clearance (i.e., by the ABA or FBI) on the prospective nominee is initiated;

(3) after having identified the name of an individual the President is considering nominating, failure to (a) seek a home state Senator’s feedback, including any objections the Senator may have to the prospective nominee, at least two weeks before any formal clearances are initiated, and (b) give that feedback serious consideration;

(4) failure to notify a home state Senator, and the Judiciary Committee, that formal clearance on a prospective nominee is being initiated despite the Senator’s objections; and

(5) failure to notify home state Senators, and the Judiciary Committee, before a nomination is actually made, that the President will nominate an individual.

(CRS Report, pp. 14-16.)

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The threat of a negative blue slip gives home-state senators considerable leverage in the White House’s consideration of judicial candidates. But there is still a lot of room for a president to get an opposite-party senator to acquiesce in his selection. An attractive candidate will often have influential home-state supporters who will weigh in with the senator. A senator won’t want to be blamed for a backlog in the local judicial caseload. Or a White House might offer the senator other favors as part of a deal.

From a political party’s ideological perspective, a broader limitation of the blue-slip power is that it applies only in states in which that party has a senator. For Senate Republicans in Clinton’s second term, the Ninth Circuit provides an apt illustration of the point.

Although the nine western states it covered included some very red states, the Ninth Circuit was dominated by California and had already earned its reputation as famously (or notoriously) liberal. Thanks in large part to a 1978 law that expanded it from 13 to 23 seats, Jimmy Carter appointed 15 of its judges. In the spring of 1997, the Ninth Circuit had vacancies (current or declared*) in nine of its then 28 authorized judgeships. Five of those nine vacancies were in seats that had been held by Republican appointees. Five of the nine (including three with Republican appointees) were also in California. By filling the vacancies, Clinton would make the Ninth Circuit even more liberal for the next two decades.

California’s two senators were both Democrats, so Republicans had no blue-slip role in the California vacancies. Because the work of appellate judges spreads across all the states in a circuit, the nine Republican senators from states in the Ninth Circuit had the same interest in the Ninth Circuit vacancies in California as they did in any Ninth Circuit vacancies in their states. Yet they had no more say in them than senators from states in other circuits did.

To address this supposed problem, two Republican senators in April 1997 developed and pushed two bizarre initiatives that would dramatically expand the power of individual senators over appellate nominees. As described in the New York Times, under a proposal by Phil Gramm of Texas, “if the majority of Republican senators from the states covered by a circuit objected to a Clinton nominee, the Republican majority on the Judiciary Committee would be obliged to kill the nomination.” Under a separate proposal by Slade Gorton of Washington, “the Republicans would flatly refuse to confirm any [appellate] nominee unless the President consulted in advance with the Republicans from the states in that nominee's circuit.” In essence, the proposals would expand the (already difficult to justify) power of home-state senators over appellate nominees in their own states by extending it to appellate nominees in other states in the same circuit. (The New York Times article botches this point, as its veteran reporter somehow didn’t know that the blue-slip privilege already applied to appellate nominees.)

Senator Slade Gorton (R-Washington)

In his memoir Square Peg, Hatch calls these proposals “absolutely ridiculous” and argues that they would “emasculat[e] the committee process.” With all due respect for Gramm and Gorton, I strongly agree with Hatch. Whereas the committee chairman conferred the blue-slip privilege on his fellow senators, the Gramm and Gorton proposals would override the chairman’s authority over nominations. They would do so not pursuant to any Senate or committee rule or practice, but as a mandate from the Senate Republican conference (the caucus of Republican senators). And by operating obscurely behind the scenes, they would insulate senators from accountability for their obstruction.

As Hatch argued to the Republican caucus, the next time the tables turned, these measures, if adopted, “would be tantamount to giving the Democrats the ability and opportunity to block every nominee to a federal court of appeals selected by a Republican president.” Hatch presented the caucus a letter from three former Republican Attorneys General—Ed Meese, Dick Thornburgh, and Bill Barr—that explained how damaging the proposals would be to Republican presidents. In the end, he defeated both proposals, Gorton’s by a single vote.

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It’s always tempting to pursue immediate victories at the expense of long-term strategic considerations. As Hatch understood, you don’t make big gains in the judicial-confirmation wars by stopping the other side’s nominees through process gimmicks that will be returned against you. You make big gains by getting your party’s president elected and his nominees confirmed and by getting your senators to be accountable and to fight and win the public debate over judicial philosophy.

* I’m using “current” to refer to seats that are empty and “declared” to refer to seats in which the incumbent has stated an intention to vacate the seat at some future date or upon the confirmation of a successor. (My usage here differs from the distinction between “current” and “future” that the Administrative Office of the United States Court uses, as it includes in “current” vacancies any seat in which the incumbent has resigned effective upon the confirmation of a successor.)