05.08.18

Senate Floor Remarks Of Sen. Patrick Leahy On Abandonment Of The Senate’s Blue Slip Tradition In Judicial Confirmations

As the longest-serving member of the Senate — and a former chairman of the Judiciary Committee — I feel obligated to speak up about the steady erosion of the norms and traditions that protect the Senate’s unique constitutional role.  This week we are witnessing a further degradation of the once-respected role of the “blue slip” in the judicial confirmation process.

Partisans who value only political expediency have argued that blue slips are archaic remnants, or mere slips of paper.  But blue slips represent — and help preserve — something far more meaningful.  For much of this body’s history, blue slips have given meaning to the constitutional requirement of “advice and consent.”  They have protected the prerogatives of home-state senators.  And they have ensured fairness and comity in the Senate.  In many ways, traditions like the blue slip have been central to what makes the Senate the Senate.

All of us, whether Democrat or Republican, should care about good faith consultation when it comes to nominees from our own states.  The reasons for this are both principled and pragmatic.  We know our states.  We know who is qualified to fill lifetime appointments to the bench.  And, critically, we know that the one constant in life is impermanence.  That is precisely why traditions matter.

When I was chairman of the Judiciary Committee at the start of the Obama administration, every single Senate Republican signed a letter making the case for the importance of this tradition, and requesting that it be respected during the new administration.  But I did not need that reminder.  Under my chairmanship, during both the Bush and Obama administrations, I respected the blue slip tradition without exception, even when it was not politically expedient. 

My decision was not without controversy.  I faced pressure from my own party’s leadership to hold hearings for President Obama’s nominees who had not received blue slips from Republican senators.  I was criticized by advocacy groups and even the editorial page of The New York Times.  But I resisted such pressure.  I did so because I believed then — and I still believe now — that certain principles matter more than party.     

Now, not all Judiciary chairmen followed the same blue slip policy as I did.  But Chairman Grassley did follow the same policy, at least when a Democrat was in the White House.  Last Congress, no judicial nominee received a hearing without both home-state senators returning positive blue slips.  This Congress, coinciding with a change in the White House, there has been a change in blue slip policy. 

Tomorrow, the Judiciary Committee will hold a hearing for a nominee to the Ninth Circuit, Ryan Bounds, opposed by not one but both of his home-state senators.  If Mr. Bounds is ultimately confirmed, it will mark the first time in the history of the Senate that a judicial nominee is confirmed with opposition from both home-state senators. 

Also this week, the full Senate will consider the nomination of Michael Brennan to the Seventh Circuit, over the objection of home-state Senator Tammy Baldwin.  Mr. Brennan’s nomination was not even supported by the bipartisan Wisconsin Federal Nominating Commission.  For years this has been a long-standing requirement for potential nominees to the Federal bench in Wisconsin.   

It is no wonder that Senator Baldwin could not in good conscience return her blue slip.  I would hope that none of us who have established processes to vet and recommend nominees in our home states would.  Yet, somehow, Mr. Brennan was nominated, and he may be confirmed this week. 

Make no mistake:  This confirmation will do lasting damage to the Senate’s traditions.  My concern is not about a mere piece of paper.  My concern is that we are failing to protect the fundamental rights of home-state senators — and we are failing in our constitutional duty to provide our advice and consent.  Mr. Brennan’s nomination makes a mockery of the blue slip process.  And it makes a mockery of the time-tested process that home-state senators have abided by in Wisconsin for decades.  That should concern all of us.

I understand the pressure on my Republican colleagues to help a president from their own party to fill judicial vacancies; even a president who attacks the very legitimacy of our judiciary.  The dilemma is that yielding to such pressure — undermining a Senate tradition simply due to a change in the White House — will do lasting damage to the integrity of this body.  The Senate should never function as a mere rubberstamp for nominees seeking lifetime appointments to our federal judiciary.

Perhaps some may dismiss these warnings, but I have served in the Senate long enough to know that partisan winds tend to change direction.  Inevitably, the majority becomes the minority.  The White House changes hands.  And the shoe is on the other foot.  That is precisely why maintaining a single, consistent policy is so critical.

I urge my fellow Senators to consider the damage we are doing to this body by abandoning one of the few remaining sources of bipartisan goodwill in our judicial confirmation process.  A vote for Mr. Brennan is a vote to abandon our ability to serve as a check on not just this president, but any future president. 

Chasing partisan expediency provides only fleeting advantage.  It inflicts lasting harm on this body, and it is within our power to put a stop to it.  I would urge all senators to ensure that, going forward, home-state senators are provided the same courtesies during the Trump administration as they were during the Obama administration.  And for this reason I ask my fellow senators to oppose Mr. Brennan’s nomination. 

Press Contact

David Carle: 202-224-3693