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Senate Democrats and judicial liberals are panicking. Senate Majority Leader Mitch McConnell, it appears, wants to do away with "blue slips," making it impossible for senators to block federal court nominees from their states whom they don't like, removing a powerful tool for Democrats to resist President Trump's court appointments.
But experts say the situation is less dire. It's not clear yet how McConnell is changing the rules, the blue slip rule has changed frequently in the past, and whether it exists doesn't change the fact that Trump will be able to fill a staggering number of vacancies.
Blue slips are a tradition that the Senate Judiciary Committee has historically used to consult the two senators from a federal court nominee's home state. When, for example, President Trump nominated David Stras from Minnesota for a spot on the Court of Appeals for the Eighth Circuit, the two senators from Minnesota, Al Franken and Amy Klobuchar (both Democrats), were given a chance to return or withhold a "blue slip" in support of the nomination. If both slips are returned, it signals the senators support the nominee. If either is withheld, it signals the nominee doesn't have the complete support of his or her state.
This isn't a veto power; it's not unheard of for nominees without two blue slips to ultimately be confirmed. But it's rare. As Senate Judiciary Committee ranking member Dianne Feinstein (D-CA) has noted, "During the administrations of Presidents Barack Obama, George W. Bush and Bill Clinton, no circuit court or district court nominees were confirmed without blue slips from both home-state senators. "
That gives enough power to individual senators, particularly ones from the opposing party, to greatly annoy the Senate leadership. So McConnell told the Weekly Standard's Fred Barnes that blue slips will not be honored; their withholding will be taken an indication of how a home state senator will vote, but not kill the nomination. The comments followed weeks of pressure by judicial conservatives to weaken blue slips, which they view as a central impediment keeping Trump's nominees from reaching the bench.
McConnell's office quickly walked back the statement, and Judiciary Committee Chair Chuck Grassley (R-IA), who actually decides whether blue slips are honored, insisted that the practice will remain in at least some form. But the damage was done. McConnell, the New York Times editorial board warns, is "itching to eliminate the last remaining tool the minority party has to influence a president's picks for the federal courts." Feinstein further sounded the alarm in a statement, saying, "I urge my colleagues to think long and hard about whether to further unravel the Senate's role in the judicial nominations process."
Raising the stakes is the fact that Trump came into office with a historically high number of district and circuit court vacancies, giving him a rare opportunity to completely reshape the courts. He's already started, by nominating likely future Supreme Court contenders like Stras or Michigan's Joan Larsen to appeals courts, though he's yet to appoint anyone for many vacancies. Weakening the blue slip rule removes one tool Democrats have to resist Trump's appointments. This is particularly important in the case of Stras; Franken has declined to return a blue slip for him, setting up a potential fight with Senate Republicans.
Political scientists and other experts, however, argue that blue slips are neither as damaging as the conservatives insist nor as crucial a check as Democrats in the Senate believe.
"They're probably not nearly as important as the [conservative] activists might think they are," Richard Vining, a professor of political science at the University of Georgia who studies federal courts, says. "The blue slip has nothing to do with the fact that there's more than 100 vacancies right now with no nominees. Senators aren't withholding support from people who don't exist."
"Overall, negative blue slips are relatively infrequent, and so are not really the source of a lot of the slowdowns and blockages we see with respect to the confirmation process," Amy Steigerwalt, a professor of political science at Georgia State and editor-in-chief of the Judicial System Journal, notes.
What's less normal is that the change is now following Democrats' 2013 abolition of the filibuster for judicial appointments, a change that Republicans affirmed earlier this year by also abolishing it for Supreme Court nominees.
"By eliminating the filibuster rule regarding judicial nominations at all levels of the judiciary, and by doing away with the blue slip privilege, both practices dating back centuries, McConnell has cut Democrats off at the knees," Nancy Scherer, a professor of political science and judicial expert at Wellesley College, says. "The problem for Republicans is now having set this precedent, they must expect similar retaliation when the Democrats control the White House and the Senate."
Historically, the minority has had multiple ways to resist nominees. Now blue slips are one of the few that remain.
Senate Democrats insist that the blue slip is an enduring Senate tradition, one that gives great authority to home-state senators in rejecting nominees. And to be sure, this is how Judiciary Committee Chair Patrick Leahy (D-VT) ran things during the Obama years, at least the six of eight years during which Democrats ran the Senate.
"A Democratic Senate during the Obama administration kept the blue-slip process intact, even though it meant that in certain jurisdictions seats remained unfilled for years," Dahlia Lithwick writes at Slate. "For example, a seat on the 5th U.S. Circuit Court of Appeals — covering Louisiana, Mississippi, and Texas — has been vacant for more than five years. This is, in fact, one of the reasons Trump has so many empty seats to fill. Sens. Ted Cruz and John Cornyn of Texas objected to potential nominees for two 5th U.S. Circuit seats, as well as those for six district court vacancies."
But this isn't how things have always worked. The blue slip is an evolving norm that's been interpreted differently depending on who is running the Judiciary Committee.
"The Senate has been playing around with the blue slip rules for decades," Scherer says. "In fact, Strom Thurmond, chairman of the Judiciary Committee during the Reagan administration, ignored Democratic blue slips of Reagan nominees to the bench. The basic pattern of blue slip rules is that when the Senate and president are of the same party, blue slips are ignored or two blue slips are required to block a nominee."
Nor is it the case that Democrats have always treated blue slips more seriously than Republicans. "If you look at the way chairmen have used them, there are people who'd move forward with nominees if assured that consultation took place" even if both blue slips weren't returned, Vining says. "Joe Biden [who chaired the committee from 1987 to 1995] used that policy. He didn't consider a negative blue slip to be the end of the process, but there had to be evidence of consultation."
Perhaps the biggest change to the rule, Vining says, occurred in 1998. Before that point, there was a one-week deadline for home-state senators to raise objections. If no one raised a stink after one week, the nominee was deemed acceptable and moved forward. But in 1998, then-Judiciary Committee Chair Orrin Hatch changed the rule to say home-state senators were to return with their opinions "as soon as possible."
"That's probably a major source of the problems these days," Vining says. "People can just stick them in a drawer and leave them there and hold up the process without making a commitment on the blue slip itself."
McConnell's comments were widely reported as calling for the total abolition of the blue slip system. His subsequent comments, along with Grassley's, suggest that's not going to happen. For one thing, McConnell has little power to decide which nominees the Judiciary Committee does and does not consider. Grassley holds the cards there.
But just as the blue slip power has been interpreted in different ways throughout time, Grassley and McConnell could move toward a less stringent understanding of what it means for senators to not return blue slips. That could involve taking home-state opposition as a mere suggestion, or distinguishing between legitimate and illegitimate reasons for a home-state senator to block someone.
This fits into the aforementioned overall history of the blue slip rule changing to serve the Senate majority's needs.
"[Some] chairs have said, 'If it's not returned for a reason I find rational, we won't hold a hearing. If it's just partisanship, we'll hold a hearing,'" Josh Blackman, a law professor at South Texas College of Law Houston and a noted conservative legal scholar, says. "Grassley can say to Franken, 'You were consulted; your objection is he's too conservative; that's not good enough.'"
And the majority itself might have a reason to keep blue slips around in one form or another. It doesn't just give the minority party more power; it gives senators of the president's own party a say on court appointments, which, especially for senators critical of Trump like Arizona's Jeff Flake or Tennessee's Bob Corker, is an important power and privilege. "The concern over blue slips and threats of removing them are really about senators wanting to have a say in who is nominated," Steigerwalt says. "Blue slips provide a mechanism to force the president to consult senators prior to nomination. Taking away blue slips removes this leverage and so could actually have rather important consequences for presidential-senatorial consultation, regardless of party."
Regardless of whether blue slips stay or go, there are other, arguably more important factors holding back Trump's nominees. One is that he simply hasn't named people to that many positions. He's named a decent number, and is going faster than Obama, but as Vining says, it's hard to confirm people who haven't even been nominated.
Another factor is the 30-hour rule, which says that the Senate will take 30 hours to consider each nomination. "[Democrats] are demanding 30 hours of debate. They want more clock time, so the Senate can do less," Blackman says. McConnell mentioned this in his interview with the Weekly Standard, and unlike blue slips, it's an area where he has absolute authority to change the rules.
Even without procedural changes, though, what we know for sure is that Trump will have extensive power to reshape the courts. As of this writing, there are 150 vacant federal judgeships, 21 on circuit courts of appeals. More than 10 percent of appeals court spots, and more than one in six district court positions, are vacant. That's a tremendous amount of room for Trump to change the federal court system.