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.