WASHINGTON (CN) — For some members of Congress, bipartisanship may seem like a relic of another time, but in one major Senate committee, lawmakers are clinging to a procedural mechanism that some frame as a vestige of cross-aisle cooperation — but that others claim is a tool of obstructionism.
As the upper chamber’s chief legal affairs panel, the Senate Judiciary Committee is tasked with considering and approving federal court nominees selected by the White House. Appointees for circuit and district courts, U.S. attorney nominees and even proposed Supreme Court justices fall under the committee’s purview.
This authority gives the Judiciary Committee a particularly important role in any presidential administration. The panel can help the White House fill vacancies on federal courts with friendly jurists — who may end up setting legal precedent on a breadth of policy issues such as heath care, reproductive rights and gun control.
When the Senate and the executive are controlled by the same party, that process can move quickly. Under the Trump administration, the Republican-controlled panel advanced 234 of the president’s judicial nominees, including three Supreme Court justices, 54 appellate court judges and 174 lower court judges.
Despite that, the Judiciary Committee has for more than a century used an informal mechanism known as a blue slip, which can serve as a check on ambitions to stack the judiciary.
A Senate tradition dating back as far as 1917, blue-slipping allows home state senators to offer support or opposition to court nominees selected for courts in their backyard.
The intended use of blue slips makes sense, explained Carl Tobias, chair of the University of Richmond’s School of Law. “The person who’s going to get blamed for a judge who is incompetent is the home state senator in that state, so it’s understandable that they would want to have some say,” he said.
However, as an informal tool, the limits of blue-slipping have historically been left at the discretion of the Judiciary Committee chair.
“I think it’s been checkered,” Tobias said. “Both Republican and Democratic chairs weren’t always consistent.”
Under former Vermont Senator Patrick Leahy, a Democrat who chaired the Judiciary Committee at the end of the George W. Bush administration and under President Obama, both senators from a nominee’s home state were required to submit blue slips for both district and circuit court picks.
Things changed in 2017 with Iowa Republican Chuck Grassley, who as panel chair scheduled confirmation hearings for circuit court nominees and other judicial appointments without blue slips. The senator argued at the time that he was “choosing to apply the blue-slip policy that most of my predecessors had” and said that he “wouldn’t treat blue slips as single-senator vetoes.”
Republican lawmakers later chafed as Democrats, who took control of the Senate in 2020, scheduled confirmation hearings for nominees without seeking blue-slip approval from the GOP.
Although he has said Democrats reserve the right to follow in Republicans’ footsteps, current Judiciary Committee chair Dick Durbin has long been a proponent of the blue-slipping process. The Illinois senator has argued that the mechanism is effective in helping to fill judicial vacancies in districts that are controlled by Republicans.
The lawmaker most recently defended blue slips during a committee meeting Thursday, at which he said he had been questioned by Democratic colleagues, “sometimes actively,” about his commitment to work with the Biden administration to fill court vacancies.
“I’ve received some criticism for defending the committee’s longstanding policy of blue slips for district court vacancies,” Durbin said, “but some judicial vacancies in states represented by Republican senators have languished for months on end.”
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