WASHINGTON (CN) — A Sixth Circuit nominee's appearance at the Senate Judiciary Committee in mid-January was a doozy.
It wasn’t just Andre Mathis’ three traffic tickets that irked Senator Marsha Blackburn, who dubbed Mathis' traffic citations a “rap sheet,” but the fact that the White House had largely ignored her and fellow Tennessee Republican Bill Hagerty’s opinions about the nominee hailing from their state.
While presidents have traditionally sought agreement from home-state senators in the form of a “blue slip” of approval to move forward with federal judicial nominees, this collegial process for circuit court nominees was nixed during the Trump administration, a change that has exacerbated judicial nominations as political flashpoints.
“I do see it as a breach of constitutional norms," Blackburn said of Democrats following Republicans' lead and ignoring the blue slip for Mathis' nomination.
This moment of tension during Mathis’ hearing exemplified a scenario that presidents, including Joe Biden, have increasingly avoided confronting during their first year in office — nominations to courts in states with senators of the opposite party.
Of Biden’s 13 nominations to circuit courts during his first year, 11 were to states represented by two Democrats or no senators, mirrored by 94% of his district court nominations going to states with two Democratic senators, according to analysis by Russell Wheeler, a visiting fellow of governance studies at the Brookings Institution.
Since the Reagan administration, presidents have increasingly avoided filling circuit and district court vacancies in states with opposition-party senators early on in their terms as what once was a fairly civil process has morphed into a partisan battleground.
One-third of Reagan’s first-year circuit court nominations were to states with no opposition-party senators, rising to 53% for Trump and 85% of Biden’s picks during his first year in office, according to Wheeler’s research.
The Evolution of Nomination Politics
It was a long-held custom in the earliest iterations of the Senate to rely on home-state senators to pick federal court nominees in their states, a tradition that gave birth to the blue slip in the early 1900s.
Typically, this deference was given to home-state senators of the president’s party, with opposition-party senators largely deferring to the president when it came to nominations in their state.
“The minority would say, ‘Well, the president won the election so he gets to pick judges, and we'll defer to that unless they're terribly out of line, and we expect the same thing from our colleagues on the other side, once we have someone in the White House,'” Wheeler said.
The blue slip evolved as a way for home-state senators regardless of party affiliation to make their opinions on a nominee known. Back then, however, the parties were not deeply ideologically divided when it came to judicial nominees, and opposition party senators sometimes returned positive blue slips even for nominees they may not have preferred.
The judicial nomination process simply wasn’t seen as a zero-sum game.
“During this time, sort of pre-Reagan, getting a federal court of appeals judgeship was sort of a patronage job almost. There was less of a focus on inequality [in nominations] because the parties weren't that different ideologically. And so, you would basically use the blue slip as a mechanism that would give the home-state senators power. Because there wasn't really a focus on ideology, if you were a Democrat, you didn't mind so much a Republican having blue slip power and vice versa,” said Neal Devins, professor of law and government at William and Mary Law School.
That changed during the era of Ronald Reagan, when the trend of Republican presidents nominating conservative judges and Democrats pushing for liberal nominees began to emerge, with the courts as a new stage for political battles over ideology, criminal justice and the Constitution.