Las Vegas Review-Journal (Sunday)
It’s time to give the blue slip the pink slip
WHERE’S Sen. Harry Reid when we really need him? In Washington, Democrats have confirmed 105 judges nominated by President Joe Biden, outpacing the rate at which former President Donald Trump got nominees confirmed to the bench.
Progressives, of course, want more. And they are targeting a Senate tradition that stands in the way, known as the blue slip.
In place since at least 1917, the blue slip is a form sent to the homestate senators of a judicial nominee that asks for a recommendation. Senators can return a positive recommendation, or a negative one, or simply decide not to return the form at all.
Although the practice has varied over the years — in some cases, a negative blue slip hasn’t necessarily doomed a nomination — the current practice under Senate Judiciary Committee Chairman Dick Durbin, D-ill., is that a negative or missing blue slip means a nominee doesn’t move forward.
And that’s a big crock of … potato soup, as Reid once famously said on the Senate floor, in another context.
Durbin has little excuse here because he was one of Reid’s top lieutenants in the Senate. He witnessed Reid do away with the filibuster for district and appellate court judicial nominees in 2013, ostensibly in light of unprecedented Republican blockades. And he knew that, in retirement, Reid suggested getting rid of the filibuster entirely.
It’s important to understand the blue slip: It does not appear in the U.S. Constitution or the Bill of Rights. It does not appear in the U.S. Code. It is not in the Senate rule book. It’s a tradition, and one that has been inconsistently applied during its 100plus year life.
“In many respects, it’s an archaic holdover from a different era,” said Sen. Richard Blumenthal, D-conn., speaking of the blue slip and not the Senate itself. Commentaters, including The New York Times editorial board, note that it was used during segregation to block judges who were in favor of school integration.
It has been used in Nevada, too. In 2012, then-sen. Dean Heller returned a negative blue slip to scuttle the nomination of Elissa Cadish to the federal bench, based on old (but legally correct at the time) comments she had made about gun control laws.
The president at the time was a Democrat. The senior senator, Reid, was a Democrat. But a Republican stood in the way of a qualified judge taking the federal bench. (Heller used the blue slip again in 2016 to block Boyd Law School professor Anne Traum’s federal nomination. Cadish was eventually elected to the Nevada Supreme Court, and Traum was renominated under Biden and sits on the Nevada federal bench today.
But think about it in reverse: What if in 2024, Florida Gov. Ron Desantis becomes president, and Sen. Jacky Rosen loses her seat to a Republican, say state Sen. Heidi Gansert, R-reno? Gansert then suggests a Republican nominee for a federal judgeship, say former Lt. Gov. Mark Hutchison. Should Democrat Catherine Cortez Masto be allow to frustrate the will of the president and the Senate by sending in a negative blue slip?
Of course not.
Being a Democrat, Durbin has pledged he will not allow a blue slip to be used to block a nominee on the basis of race, gender or sexual orientation. But he’s drawn no red line when it comes to opposition based on the desire to thwart the president’s ability to fill vacancies.
Sen. Marsha Blackburn, R-tenn., told NBC News that “the blue slip is essential to the Senate’s constitutional obligation to provide advice and consent.” But that’s plainly absurd. Presidents will go on consulting home-state senators, even those of the opposing party, because politics demands it. (It’s always better to dance than to fight, as Reid used to say.) But consent is expressed in votes — in committee and on the Senate floor — and that won’t change if the blue slip goes away.
It is the privilege of the senior senator of the president’s party to suggest nominations to the president. If another senator objects, let her or him say so, in the Judiciary Committee or on the floor. But no single senator, using a piece of blue paper, should be able to singlehandedly veto a nominee.
If Reid got rid of the real filibuster for judicial nominations, why should we keep the shadow filibuster? Durbin would do well to channel his old mentor and ditch the blue slip tradition once and for all.