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ISSUE BRIEF No ISSUE BRIEF No. 4718 | JUNE 16, 2017 What the Blue Slip Process Means for Trump’s Judicial Nominations Elizabeth Slattery resident Donald Trump inherited more than The Senate’s Role in the P120 vacancies on the lower federal courts and Appointments Process one Supreme Court vacancy when he took office on The Framers of the Constitution hotly debated January 20, 2017. Trump made filling the Supreme how our third branch of government would be filled. Court vacancy one of his first priorities, and Neil One camp, including John Adams, thought the Sen- Gorsuch was confirmed by the Senate in time to ate should not be involved in the appointments pro- join the Court for the end of its 2016–2017 term. cess,1 but proponents of dividing the responsibil- Now the President’s focus has turned to the appel- ity between the President and the Senate prevailed. late and district court vacancies. The Senate con- Alexander Hamilton explained in Federalist No. 76 firmed Trump’s first appeals court nominee, Amul that the Senate would act as “an excellent check upon Thapar, to the U.S. Court of Appeals for the Sixth a spirit of favoritism in the President, and would tend Circuit on May 25. greatly to prevent the appointment of unfit charac- As of June 7, Trump had nominated 16 individ- ters.”2 Thus, Article II, Section 2 of the Constitution uals to various federal district and appeals courts. provides that the President “shall nominate, and by While Trump might have believed his lower court and with the Advice and Consent of the Senate, shall nominees would sail through their Senate confir- appoint Ambassadors, other public Ministers and mations, they are likely to encounter aggressive Consuls, Judges of the supreme Court, and all other resistance by Senate Democrats. In 2013, the Sen- Officers of the United States.”3 ate eliminated the filibuster as a tool for delaying Beyond providing advice and consent, the Con- or stopping the confirmation of lower court judges, stitution does not offer any further detail about the so Senate Democrats may view the blue slip process Senate’s role in the process. It is clear, however, that as the best option for obstructing the President’s Senators are not obligated to confirm every nomi- nominations. What are blue slips, and how might nee. This was evident from as early as 1795, when the Senate Republicans prevent potential abuses of the Senate rejected George Washington’s nomination process? of John Rutledge to be chief justice of the Supreme Court. Senators should take their role in the pro- cess seriously and evaluate the qualifications, back- ground, and judicial philosophy of nominees, rather This paper, in its entirety, can be found at than rubberstamping any President’s nominees. http://report.heritage.org/ib4718 The Senate has developed a variety of traditions The Heritage Foundation 214 Massachusetts Avenue, NE and practices related to the confirmation of federal Washington, DC 20002 judges. Since the early twentieth century,4 the Chair- (202) 546-4400 | heritage.org man of the Senate Judiciary Committee—the com- Nothing written here is to be construed as necessarily reflecting the views of The Heritage Foundation or as an attempt to aid or hinder the passage mittee responsible for evaluating judicial nominees of any bill before Congress. before they are sent to the full Senate—has sent let- ISSUE BRIEF | NO. 4718 JUNE 16, 2017 ters on blue paper (“blue slips”) to senators from party may seek to use the blue slip process as a way a nominee’s home state asking them to approve or to prevent nominees from advancing. In fact, there object to the nomination. If the home-state senators have already been suggestions that Democratic Sena- refuse to assent to the nomination, it might not move tors may withhold their blue slips for two of President forward in the Committee. The use of blue slips devel- Trump’s nominees. Trump nominated Joan Lars- oped out of the senatorial courtesy—the tradition that en of Michigan to the U.S. Court of Appeals for the home-state senators will be consulted on selection of Sixth Circuit and David Stras of Minnesota to the U.S. a nominee and may block objectionable nominees— Court of Appeals for the Eight Circuit, and both states dating back to George Washington’s Administra- are represented by two Democrats in the Senate. Both tion.5 This recognizes that home-state senators may of these nominees were included in the list of possi- be more familiar with the nominee and have better ble Supreme Court nominees that Trump produced insights into the nominee’s suitability for the position. during his presidential campaign. In a press release In the past, senators took to the Senate floor to following Stras’ nomination, Senator Al Franken (D– declare a nomination “personally obnoxious.” In 1939, MN) indicated his displeasure with the President for Senator Harry Byrd (D–VA) objected to President having sought input from conservative organizations, Franklin Delano Roosevelt’s nomination of a district rather than him, in selecting a nominee.7 court judge in Virginia without first seeking the input Senators have been able to use the threat of of the two Virginia Senators. Byrd declared, “It is my withholding a blue slip to persuade the President sincere and honest conviction that this nomination was to select home-state senators’ preferred nominees. made for the purpose of being personally offensive to For example, Georgia Senators Johnny Isakson the Virginia Senators, and it is personally offensive to and Saxby Chambliss struck a deal with President the Virginia Senators, and is personally obnoxious to Barack Obama over seven judicial nominations in me, as well as to my colleague.”6 The Senate voted 72–9 2013. Isakson and Chambliss returned their blue against confirmation. Today, Senators of the President’s slips on all seven in exchange for Obama nominat- party will typically seek to influence the selection of ing one individual they supported—although their nominees and make their displeasure known before an preferred nominee was ultimately not confirmed. If “obnoxious” nomination is made. The minority party, Senate Democrats are not able to influence President however, must often resort to post hoc tools such as Trump’s selection process—which seems to be the the use of blue slips and other procedural maneuvers. case with his early judicial nominations—they may seek to use the blue slip process to stop nominees Senate Minority’s Influence on from advancing. Nominations The Senate Democrats eliminated the use of the Understandably, when one party holds both the filibuster against lower court nominations (and exec- presidency and a majority of the Senate, the minority utive branch nominations) in 2013, so they now have 1. John Adams, “Letter to Thomas Jefferson,” December 6, 1787, https://founders.archives.gov/documents/Adams/99-02-02-0281 (accessed June 15, 2017). Adams wrote, “I would therefore, have given more power to the President, and less to the senate. The nomination and appointment to all offices I would have given to the President, assisted only by a privy council of his own creation; but not a vote or voice would I have given the Senate or any senator unless he were of the privy council. Faction and distraction are the sure and certain consequences of giving to the senate a vote on the distribution of offices.” 2. Alexander Hamilton, The Federalist, No. 76 (Carey and McClellan, 2001), p. 394. 3. U.S. Constitution, Article II, §2, https://usconstitution.net/xconst_A2Sec2.html (accessed June 15, 2017). 4. See Mitchel A. Sollenberger, “The History of the Blue Slip in the Senate Committee on the Judiciary, 1917–Present,” Congressional Research Service Report for Congress, October 22, 2003, https://www.everycrsreport.com/reports/RL32013.html (accessed June 15, 2017). 5. See Betsy Palmer, “Evolution of the Senate’s Role in the Nomination and Confirmation Process: A Brief History,” Congressional Research Service Report for Congress, June 5, 2003, https://fas.org/sgp/crs/misc/RL31948.pdf (accessed June 15, 2017). “Senators rebuffed President George Washington on his nomination of Benjamin Fishbourn to be a naval officer of the Port of Savannah, Georgia…. After Fishbourn was rejected, Washington submitted the individual preferred by the Georgia Senators, who was promptly confirmed.” 6. Ibid. 7. News release, “Statement on Trump Nomination of Minnesota Supreme Court Justice David Stras for the Eighth Circuit,” Senator Al Franken, May 8, 2017, https://www.franken.senate.gov/?p=press_release&id=3693 (accessed June 15, 2017). 2 ISSUE BRIEF | NO. 4718 JUNE 16, 2017 one less tool for blocking or delaying the confirma- discretion to decide when to proceed notwithstand- tion of judges.8 Thus, the Senate Democrats may see ing a negative blue slip. The next chairman, Senator blue slips as the best opportunity for trying to pre- Strom Thurmond (R–SC), treated blue slips in sub- vent President Trump from filling vacancies on the stantially the same way. federal courts. What can Senate Republicans do to In 1989, Chairman Joe Biden (D–DE) instituted a ensure the confirmation of nominees who will be new policy, stating in a letter to President George H. faithful to the Constitution? W. Bush, “The return of a negative blue slip will be a significant factor to be weighed by the committee Evolution of the Blue Slip in its evaluation of a judicial nominee, but it will not The practice of using blue slips is not a formal rule preclude consideration of that nominee unless the of the Senate. It is a policy developed by the Chairman Administration has not consulted with both home of the Senate Judiciary Committee, and through- state Senators.”11 Chairman Orrin Hatch (R–UT) out its history, the practice has varied depending on continued this practice until 2001.
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