‘Blue Slips’ Help Make Constitutional ‘Advice and Consent’ A Reality

by Patrick Leahy

A New York Times editorial reprinted in Thursday’s paper (“Leahy Should End Blue Slips”) wrongly suggests that an “archaic Senate tradition” is to blame for the Obama administration’s failure to have every judicial vacancy filled.  The editorial comes across more like a fundraising blog post than a credible analysis of the nominations process in today’s Senate.  All the more so, considering that the Times published not just one but three earlier editorials, when we had a Republican president, taking exactly the opposite position on blue slips.

A blue slip is a piece of paper that the Senate Judiciary Committee chairman uses to solicit views of home state senators when someone is nominated to be a judge in their state.  The Constitution requires presidents to seek both the “advice and consent” of the Senate in appointing judges to lifetime posts on the federal courts.  This blue piece of paper is about the “advice” prong of the Senate’s constitutional role.  When senators return this paper it is proof that the senators elected to represent that state were consulted and the nominee is likely to be confirmed.

The judicial confirmation process in the Senate has grown increasingly difficult.  If a president does not consult with home state senators to seek their advice on nominees, it is far less likely the nominee will have their support and be confirmed.  The blue slip is just a piece of paper and could be eliminated today, but that would not change the importance of home state senators’ support for confirming judicial nominees to the states they represent.  As chairman of the Judiciary Committee, I have worked tirelessly to get judicial nominees confirmed.  I cannot recall a single judicial nominee being confirmed over the objection of his or her home state senators.  The blue slip process reflects this reality, and those who care about the courts and who want qualified judges confirmed should not overlook this fact.

Those who believe that doing away with the blue slip process will bring only positive change are also forgetting that the like-minded will not always occupy the White House or control the Senate. 

I know that Vermonters want their voices and views taken into account on nominees to Vermont’s federal court.  A current example here at home is the process underway to replace our state’s longest-serving district court judge, Judge William Sessions, who is taking senior status.  Following a bipartisan tradition that the late Senator Bob Stafford and I started years ago, I put together a merit commission, with Senator Sanders and the Vermont Bar Association, to evaluate potential candidates.  Last month, at the end of that screening process, I recommended to President Obama that he nominate Vermont Supreme Court Justice Geoffrey Crawford.  The blue slip process empowers senators to have input with presidents about those who will serve their constituents.  It also ensures that the eventual nominees will have home state support in the confirmation process. 

When I first became the Judiciary Committee’s chairman in 2001, I made this process transparent so senators would be accountable to their constituents.  And I have worked with senators from both parties to fill vacancies on federal courts throughout the country.  As a result, in the Obama administration alone, the Senate has confirmed 235 judicial nominees.  I have long made clear that I would not rule out proceeding with a nomination if the blue slip is abused. 

Our independent judiciary is the envy of the rest of the world.  Our Constitution has endured for centuries.  The Senate’s practices to bring constitutional principles to life are imperfect.  They have been reformed over time, and they need ongoing evaluation to make sure they work as intended.  As we do that, the nation will be best served if we resist the temptation for fleeting or opportunistic changes, and if we test our ideas for reform by applying clear-eyed vision for the long term consequences.

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[Patrick Leahy, Vermont’s senior U.S. senator, chairs the Senate Judiciary Committee.]

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