The History of the Blue Slip in the Senate Committee on the Judiciary, 1917-Present
CRS Report for Congress
The History of the Blue Slip in the Senate
Committee on the Judiciary, 1917-Present
Updated October 22, 2003
Mitchel A. Sollenberger
Analyst in American National Government
Government and Finance Division
Congressional Research Service ˜ The Library of Congress
The History of the Blue Slip in the Senate Committee
on the Judiciary, 1917-Present
The blue-slip process had its genesis in the Senate tradition of senatorial
courtesy. Under this informal custom, the Senate would refuse to confirm a
nomination unless the nominee had been approved by the home-state Senators of the
President’s party. The Senate Committee on the Judiciary created the blue slip (so
called because of its color) out of this practice in the early 1900s. Initially, the blue
slip permitted Senators, regardless of party affiliation, to voice their opinion on a
President’s nomination to a district court in their state or to a circuit court judgeship
traditionally appointed from their home state. Over the years, the blue slip has
evolved into a tool used by Senators to delay, and often times prevent, the
confirmation of nominees they find objectionable. The following six periods
highlight the major changes that various chairmen of the Judiciary Committee
undertook in their blue-slip policy:
!From 1917 through 1955: The blue-slip policy allowed home-state Senators
to state their objections but committee action to move forward on a
nomination. If a Senator objected to his/her home-state nominee, the
committee would report the nominee adversely to the Senate, where the
contesting Senator would have the option of stating his/her objections to the
nominee before the Senate would vote on confirmation.
!From 1956 through 1978: A single home-state Senator could stop all
committee action on a judicial nominee by either returning a negative blue slip
or failing to return a blue slip to the committee.
!From 1979 to mid-1989: A home-state Senator’s failure to return a blue slip
would not necessarily prevent committee action on a nominee.
!From mid-1989 through June 5, 2001: In a public letter (1989) on the
committee’s blue-slip policy, the chairman wrote that one negative blue slip
would be “a significant factor to be weighed” but would “not preclude
consideration” of a nominee “unless the Administration has not consulted with
both home state Senators.” The committee would take no action, regardless
of presidential consultation, if both home-state Senators returned negative
!From June 6, 2001, to 2003: The chairman’s blue-slip policy allowed
movement on a judicial nominee only if both home-state Senators returned
positive blue slips to the committee. If one home-state Senator returned a
negative blue slip, no further action would be taken on the nominee.
!2003: A return of a negative blue slip by one or both home-state Senators does
not prevent the committee from moving forward with the nomination —
provided that the Administration has engaged in pre-nomination consultation
with both of the home-state Senators.
The blue-slip process has been the subject of growing scholarly and legal
debate; a selected list of reading material is included at the end of this report.
This report will be updated to reflect future blue-slip policy developments.
In troduction ......................................................1
Methodology in Preparing the History of the Blue Slip.....................3
Origin of the Blue Slip Process.......................................4
Structure of the Blue Slip (1917-2003).............................6
First Example of a Senator Using the Blue Slip......................7
The Blue-Slip Policy: 65th-108th Congresses.............................7
104 Congress to June 5, 2001, of the 107 Congress................14
June 6, 2001, to the End of the 107th Congress......................19th
Frequently Asked Questions........................................22
What Is a Blue Slip?..........................................23
What Are the Justifications for a Blue-Slip Policy?..................23
How Many Committees Have a Blue-Slip Policy?...................23
Who Sets the Blue-Slip Policy?..................................23
Why Does the Blue-Slip Policy Change?..........................23th
What Is the Blue-Slip Policy in the 108 Congress?..................23
What Are the Key Benchmark Dates for Blue Slips?.................24
When Does a Blue Slip Postpone a Nomination Indefinitely?..........24
Are Blue Slips Public Information?...............................24
List of Tables
Senate Judiciary Committee Blue-Slip Policy by Committee Chairman
The History of the Blue Slip in the
Senate Committee on the Judiciary,
The Judiciary Committee’s blue-slip policy has been a central component in its
confirmation of judicial nominations. For a large portion of its history, the blue slip
gave Senators the ability to determine the fate of their home-state judicial
nominations. If a home-state Senator had no objection to a nominee, a blue slip
would be returned to the chairman with a positive response. If, however, the Senator
had some objection to the nominee and wanted to prevent confirmation, he/she could
decide not to return the blue slip or return it with a negative response. Over the
years, the blue-slip policy has been modified to prevent a single Senator from having
such absolute power over the fate of home-state judicial nominees. Today, a blue
slip can stop a judicial nomination only if both home-state Senators return a negative
blue slip and then only if the President has failed to consult with the home-state
This report provides a history of the Judiciary Committee blue-slip custom, a
practice which emanated from the chamber’s tradition of senatorial courtesy. It first
defines “senatorial courtesy” and how the practice is related to the Judiciary
Committee’s use of the blue slip. Next, this report describes the creation of the blue-
slip procedure and the modifications to it. Eight sections profile the committee’s
blue-slip policies during the last 43 Congresses. These profiles provide a sense of
the stated and practiced blue-slip policy at any given time and place that policy in the
context of the history of the blue-slip system. Case studies are provided to show how
a particular Congress applied the blue-slip policy to a given circumstance. Finally,
a frequently asked questions section and a concluding analysis on the blue-slip
process are included.
It should be noted that there are currently two kinds of blue slips used by
Congress. The Senate version of the blue slip1 is a committee practice employed
solely by the Senate Judiciary Committee for use in the confirmation of federal
judges and other positions. In the House of Representatives, the blue slip is an
enforcement tool for the Origination Clause of the U.S. Constitution.2 CRS Report
1 For a further discussion of blue slips, see two articles by Brannon P. Denning, “The ‘Blue
Slip’: Enforcing the Norms Of The Judicial Confirmation Process,” William & Mary Bill
of Rights Journal, vol. 10, Dec. 2001, pp. 75-101; and “The Judicial Confirmation Process
and the Blue Slip,” Judicature, vol. 85, May-Apr. 2002, pp. 218-226.
2 Article I, Section 7, clause 1, of the U.S. Constitution states, “All bills for raising revenue
RS21236, Blue-Slipping: The Origination Clause in the House of Representatives,
by James V. Saturno, discusses the use of the House version of the blue slip.3
The blue slip is a manifestation of senatorial courtesy. A layman’s definition
of senatorial courtesy would be the deference with which one Senator treats another.
In the context of the constitutional responsibility of advice and consent, the term and
practice are more expansive. The American Congressional Dictionary defines
senatorial courtesy as
[t]he Senate’s practice of declining to confirm a presidential nominee for an
office in the state of a senator of the president’s party unless that senator
approves. Sometimes called “the courtesy of the Senate,” the practice is a
customary one and not always adhered to. A senator sometimes invokes the
custom by declaring that the nominee is personally obnoxious or personally
objectionable to him.
... [The Senate] also usually complies with a senator’s request for a temporary4
delay in considering a nomination, a request that is referred to as a hold.
The concept of senatorial courtesy goes beyond the confines of the Senate and,
at times, represents the courtesy a President extends, or arguably should extend, to
Senators. Political scientist Harold Chase describes the political ramifications of this
Senators, whether chosen by state legislatures, as they were at an earlier time, or
by the voters of the state, must continuously nurture their political support back
home; that is, if they hope for additional terms in office — and it is a rare senator
who does not. In this connection, senators from the First Congress on have
recognized that one or two senators have a much greater stake in a particular
appointment than others. It is, of course, exceedingly helpful to a senator to be
able to reward supporters with good posts in the federal government.
Conversely, it is enormously damaging to a senator’s prestige if a president of
his own party ignores him when it comes to making an appointment from or to
the senator’s own state. What is even more damaging to a senator’s prestige and
political power is for the president to appoint to high federal office someone who
is known back home as a political opponent to the senator. It was easy for
senators to see that if they joined together against the president to protect their
individual interests in appointments, they could to a large degree assure that the
shall originate in the House of Representatives; but the Senate may propose or concur with
amendments as on other bills.”
3 See also CRS Report RL31197, Revenue Measures in Congress: Procedural
Considerations, by James V. Saturno; and CRS Report 31399, The Origination Clause of
the U.S. Constitution: Interpretation and Enforcement, by James V. Saturno.
4 Walter Kravitz, Congressional Quarterly’s American Congressional Dictionary, 3rd ed.,
(Washington: CQ Press, 2001), p. 231. See also p. 116 for definition of “hold.”
president could only make such appointments as would be palatable to them as5
individuals. Out of such considerations grew the custom of senatorial courtesy.
Although the custom of using the “personally obnoxious” or personally
objectionable” declaration has fallen out of use in recent years, various chairmen of
the Senate Judiciary Committee have used the blue-slip practice as a means of
providing Senators with the opportunity to make objections to nominations formally
known within the committee.
Methodology in Preparing the
History of the Blue Slip
The following account of the history of the blue slip reflects research in the
National Archives and Records Administration (NARA) in Washington, D.C.6 The
primary records researched were the executive nominations files from the 56th
through the 83rd Congresses (1899-1953) and the correspondence and
communications files of the Senate Judiciary Committee during the same
Scholarly studies as well as newspaper accounts of the origination of the blue-
slip process were also used. Most accounts placed the creation of blue slips as
having occurred during the Eisenhower Administration: the 83rd through the 87th
Congresses (1953-1961).8 Therefore, the research began in that time period and then
worked back through the Congresses until no blue slips were found.
Collection of archival records and data focused on locating blue slips for each
Congress and any personal correspondence between or among Senators relating to
their use. The correspondence files contained no information on blue slips. Blue
slips were, however, found for every Congress starting with the 65th (1917-1918)
through the 83rd (1953-1954). Although there were no blue slips for the 64th
Congress (1915-1916), research was conducted as far back as the 56th Congress
(1899-1900). During this 15-year time period, no mention or evidence of blue slips
5 Harold W. Chase, Federal Judges: The Appointing Process (Minneapolis: University of
Minnesota Press, 1972), p. 6.
6 Research dates were from Jan. 23 through Feb. 3, 2003.
7 National Archives and Records Administration, Record Group 46, Records of the U.S.
Senate, 56th-83rd Congresses, Records of Executive Proceedings, Nomination Files and
Correspondence and Communications Files, Judiciary Committee, Blue Slips (1917-1953).
8 In a 1979 memorandum, Judiciary Committee staff stated “[t]he blue slip has been in use
for over 25 years.” See memorandum to Senator Edward M. Kennedy from Judiciary
Committee Staff regarding senatorial courtesy, Jan. 22, 1979, cited in U.S. Congress, Senate
Committee on the Judiciary, The Selection and Confirmation of Federal Judges: Hearingsthst
Before the Senate Committee on the Judiciary, Part I, 96 Cong., 1 sess. (Washington:
GPO, 1979), pp. 118-119. In addition, a legal scholar asserted, “the ‘blue slip’ was invented
in the Eisenhower era” (cited in Michael D. Schattman, “Picking Federal Judges: A
Mysterious Alchemy,” Michigan Law Review, vol. 96, pp. 1578-1597).
was discovered. The information collected permits a more accurate history of the
blue slip in the Judiciary Committee, correcting the widespread belief that the blue-
slip process originated in the 1950s.
Origin of the Blue Slip Process
Although not mentioned in the Judiciary Committee rules, blue slips are an
informal practice unique to the committee, which has historically used blue slips on
all U.S. attorney, U.S. marshal, U.S. district court and U.S. court of appeals
nominations. Blue slips have been employed to block nominations in one of two
ways, depending on the preferences of the Judiciary chairman. Judicial nominations
have been blocked by a Senator either returning a negative blue slip or failing to
return a blue slip altogether. Over the years, there have been various modifications
to these basic practices.
In the case of U.S. district court nominations,9 once a nomination is referred to
the Judiciary Committee, the counsel for the committee will send a blue slip (so
called because of its color) to each Senator of the nominee’s home state, regardless
of party affiliation. The Senator may then return the blue slip to the Judiciary
Committee with comments on the particular nominee in question. In most cases, the
blue slip is considered to be a pro forma gesture and will be given a positive review
by the Senator; however, in a select number of cases a negative review may occur.
For U.S. circuit court nominations, the process is similar. The Judiciary
Committee will give blue slips only to the Senators of the retiring judge’s home state.
This tradition comes from the practice of reserving circuit court positions for each10
state to ensure proportional or equal state representation for each circuit. The
President is often effectively required by this tradition to select a circuit court
nominee from the state of the retiring judge.
If a negative blue slip is received, the chairman may take the following actions
on the nominee: (1) stop all committee proceedings; (2) move forward but give added
weight to the unfavorable review; or (3) proceed without notice of the negative
review. Since the late 1970s, the committee has generally used the latter two actions
when dealing with a negative blue slip.
9 Research has yielded no evidence of blue slip usage, in at least the last 50 years, for any
nomination to a district court in U.S. territories or the District of Columbia or to the District
of Columbia Court of Appeals. Neither the territories nor the District of Columbia have
representation in the Senate. Hence, there was no blue slip given to home-state Senators inth
the cases of D.C. Circuit nominees Miguel A. Estrada and John G. Roberts, Jr., in the 108
10 For example, Sheldon Goldman wrote, “At the circuit court level, party leaders and
senators expect that their state will be represented on the bench by a citizen of that state.
Larger states feel entitled to more than one seat on their circuit. Smaller states in circuits
in which there are not enough seats to go around expect that they will have a turn at
representation.” See Sheldon Goldman, Picking Federal Judges: Lower Court Selection
From Roosevelt Through Reagan (New Haven: Yale University Press, 1997), p. 136.
The precise date on which the Judiciary Committee first used the blue-slip
procedure is not known. The committee has not made the blue slip part of its official
rules for more than 30 years,11 and this is still the case in the 108th Congress.12 From
research conducted at the National Archives, evidence suggests that the blue-slip
procedure began sometime in the mid- to late 1910s under the chairmanship of
Senator Charles A. Culberson of Texas.13
This impression is based on the appearance of the first known blue slip in the
65th Congress (1917-1918). At the time, Senator Culberson was chairman of the
Judiciary Committee, a capacity he served in from the 63rd through the 66th
Congresses (1913-1919). The documentary evidence of this time period suggests that
Senator Culberson may have created the blue slip. From the 65th Congress onward
almost every judicial nominee’s file includes a blue slip. Prior to this time (56th-64th
Congresses), the files of judicial nominees reveal no evidence of blue slips.
Judiciary Committee materials at the National Archives do not provide a
specific explanation for the creation of the blue slip; however, they may help
illuminate its early history. For instance, although the White House and the Senate
were controlled by the Democratic Party, there was periodic tension between the two
branches, and this condition may have been a factor in the blue slip’s creation.14
Of particular interest is the creation of blue slips at the same time as the
adoption of Senate Rule XXII in 1917, which permits Senators to end a filibuster by
invoking cloture.15 Despite this apparent coincidence, a direct link between the
creation of the blue slip and the cloture rule can be dispelled, because Senate Rule
XXII did not apply to judicial nominations until 1949. In that year, S.Res. 15
modified Senate Rule XXII from, “to bring to a close the debate upon any pending
measure is presented to the Senate ...” to the following: “to bring to a close the
debate upon any measure, motion, or other matter pending before the Senate.”16
11 In a 1979 memorandum, the Judiciary Committee staff stated, “at least for a decade there
has been no ‘rule of the Committee’ on the subject.” See memorandum to Senator Edward
M. Kennedy, Jan. 22, 1979, cited in U.S. Congress, Senate Committee on the Judiciary, The
Selection and Confirmation of Federal Judges, pp. 118-119.
12 The blue slip procedure was not mentioned in the rules posted on the website for the
Judiciary Committee, [http://judiciary.senate.gov/committee_rules.cfm], visited September
13 National Archives and Records Administration, Record Group 46, Records of the U.S.
Senate, 65th Cong., Records of Executive Proceedings, Nomination Files, Judiciary
Committee, George W. Jack. Blue Slip (1917).
14 For example, in 1917, President Woodrow Wilson’s Armed Ship Bill was defeated by a
Senate filibuster. Two years later the Senate defeated ratification of the League of Nations
15 CRS Report RL30360, Filibusters and Cloture in the Senate, by Stanley Bach.
16 Italics added. See U.S. Congress, Senate, Committee on Rules and Administration, Senate
Cloture Rule: Limitation of Debate in the Congress of the United States. 99th Cong., 1st sess.
Committee Print, S.Prt. 99-95 (Washington: GPO, 1985). Part 2, Legislative History of
Therefore, the Judiciary Committee did not need to create a blue-slip policy as a
result of the 1917 Senate rule because cloture at that time did not apply to filibusters
on judicial nominations.
Structure of the Blue Slip (1917-2003)
The basic structure of the blue slip has not changed substantially in the 86 years
since its creation. For the first 27 years (1917-1944), the blue slip was actually
handed to senators as a folded blue “slip” of paper. The blue slip form, printed on
Judiciary Committee letterhead, would contain the date, the identity of the
nomination, and the name of the Senator. At the top, the blue slip stated, “Sir: Will
you kindly give me, for the use of the Committee, your opinion and information
concerning the nomination of ...” It was signed by the committee chairman. At the
bottom of the page, lines were left for the Senator to reply and provide comments
concerning the nomination.
This structure did not change until the 67th Congress, when, in 1922, Chairman
Knute Nelson (R) of Minnesota placed below the introductory text the following
statement: “Under a rule of the Committee, unless a reply is received from you within
a week from this date, it will be assumed that you have no objection to this
nomination.”17 Before this time, the Judiciary Committee did not have a stated time
limit for a senator to return a blue slip.
After that change, the next major modification to the blue-slip policy came
during the chairmanship of Senator Strom Thurmond, when the Senator removed
from the blue slip the clause, “Under a rule of the Committee,” and left the
remainder: “Unless a reply is received from you within a week from this date, it will
be assumed that you have no objection to this nomination.” Chairman Thurmond
also added at the bottom of the blue slip, before the comments section, two boxes for
checking, one titled, “I approve” and the other, “I oppose.”
In 1998, Chairman Orrin G. Hatch replaced the traditional, “Unless a reply is
received from you within a week from this date, it will be assumed that you have no
objection to this nomination” with the following text: “Please return this form as
soon as possible to the nominations office in Dirksen G-66. No further proceedings
on this nominee will be scheduled until both slips have been returned by the
nominee’s home state senators.”18
Paragraph 2 of Rule XXII of the Standing Rules of the United States Senate (Cloture Rule),
17 National Archives and Records Administration, Record Group 46, Records of the U.S.
Senate, 67th Cong., Records of Executive Proceedings, Nomination Files, Judiciary
Committee, John Foster Symes, Blue Slip (1922).
18 See Federal News Service, Senate Radio-TV Gallery, The Capitol, News Conference with
Senator Orrin Hatch, Senator Arlen Specter, Senator Jon Kyl and Senator Jeff Sessions,
May 3, 2001.
Shortly after the 2000 elections, when Senator Patrick Leahy held the
chairmanship of the Judiciary Committee,19 the blue slip again was modified. Instead
of reinstating the Thurmond blue slip statement of, “Unless a reply is received from
you within a week from this date, it will be assumed that you have no objection to
this nomination,” Chairman Leahy inserted the following statement, “Please return
this form as soon as possible to the Committee office in Dirksen 147.” The “No
further proceedings ...” statement, instituted under Chairman Hatch, was dropped as
Chairman Leahy also modified the introduction by substituting, “Will you
kindly give me, for the use of the Committee, your opinion and information
concerning the nomination of,” with the statement of “Please give me your opinion
concerning the following nomination now pending before the Senate Judiciary
Committee.” Before Leahy’s modification, the text of the initial introduction had
never been changed.
The current blue slip form has retained Senator Leahy’s phrasing and form
except room number designation changes.
First Example of a Senator Using the Blue Slip
The first example found of a Senator using a blue slip to oppose a judicial
nomination was in the spring of 1917 (65th Congress). President Woodrow Wilson
had recently nominated U. V. Whipple to the Southern District of Georgia; Senator
Thomas W. Hardwick returned a negative blue slip on April 9, 1917. In his blue slip
reply, Senator Hardwick wrote, “I object to this appointment — the same is
personally offensive and objectionable to me, and I can not consent to the
confirmation of the nominee.”20 At that time, a blue slip did not necessarily prevent
committee action on a nomination. As such, Whipple’s nomination was reported,
albeit adversely, to the Senate, where he was rejected without a recorded vote on
April 23, 1917.21
The Blue-Slip Policy: 65th-108th Congresses
The record on the Judiciary Committee’s formal written rule on blue slips is
unclear. Even if complete records were kept on blue slips, a chairman’s policy may
have been different in practice than what was stated. Thus, determining the particular
19 At the beginning of the 107th Congress, before President-elect George W. Bush was sworn
in as President and the Republican Party would regain control of the Senate with the tie-
breaking vote of Vice-President Dick Cheney, the Senate was controlled by the Democratic
20 National Archives and Records Administration, Record Group 46, Records of the U.S.
Senate, 65th Cong., Records of Executive Proceedings, Nomination Files, Judiciary
Committee, U. V. Whipple, Blue Slip (1917).
21 U.S. Congress, Senate, Journal Of The Executive Proceedings Of The Senate, vol. L1, part
policy at any given time can be difficult. Research of historical records and
newspaper accounts reveals, however, the following Judiciary Committee policies
on the blue slip for each of the last 48 Congresses (1917-2003). Each section will
highlight the chairman’s stated blue-slip policy and show, when necessary, instances
where the policy differed, in practice from the stated blue-slip policy.
In addition, the table at the end of this report provides information on the Senate
Judiciary Committee’s blue slip policy for each of the last 21 Congresses, dating back
to 1956. The table begins in 1956 because it was then that the Judiciary Committee
began to permit Senators to use the blue slip as a way to block judicial nominations.
The table is arranged chronologically by the date in which a change occurred in the
blue-slip policy of the Senate Judiciary Committee. Working from left to right,
column one consists of the name of the Judiciary Committee chairman. Columns
two and three list the years and Congresses that a particular blue-slip policy was in
use. Finally, column four describes the Judiciary Committee’s blue-slip policy for
those years and Congresses.
Chairman Culberson’s written blue-slip policy was to merely ask the opinion
of the home-state Senators on a particular judicial nomination. A specified rule
limiting the amount of time to return a blue slip did not become part of the Judiciary
Committee’s stated policy until 1922 when Chairman Knute Nelson placed it on the
blue-slip form in the 67th Congress. No reason was given for that modification, nor
does the historical record point to any event that would have given cause for this
From the 65th through the 84th Congresses, no chair of the Judiciary Committee
allowed any negative blue slips to automatically veto a nomination. For example,
despite the blue-slipping of U. V. Whipple by Senator Hardwick of Georgia, the
chairman still moved ahead with a hearing and even a committee vote. A blue slip
apparently did not give a Senator an absolute right to block a judicial nomination and
prevent committee action.
This norm can be seen in the statements made by individual Senators who asked
if they could appear before the Judiciary Committee to express their objections to the
particular nominee that they were blue-slipping. For example, in 1936 Senator
Theodore G. Bilbo returned a negative blue slip on Edwin R. Holmes, who had been
nominated to be U.S. Circuit Court judge for the fifth circuit. On his blue slip,
Senator Bilbo stated, “I positively object to Holmes.”22 Although Senator Bilbo
stated his objection to the nominee, he did not call for the committee to stop all
proceedings on the nomination, but instead stated that he would “be pleased to make
known my objection to [this] sub-committee when [a] hearing is ordered.”23
22 National Archives and Records Administration, Record Group 46, Records of the U.S.
Senate, 74th Cong., Records of Executive Proceedings, Nomination Files, Judiciary
Committee, Edwin R. Holmes, Blue Slip (1936).
Fourteen years later (1950), Senator Bourke B. Hickenlooper, after noting on his
blue slip that he “vigorously object[ed]” to the nomination of Carroll O. Switzer to
be U.S. District Court judge for the southern district of Iowa, wrote, “I shall be glad
to appear before your committee on this matter.”24 Likewise in the same year,
Senator Richard Russell asked the Judiciary Committee Chairman Patrick McCarran
if he could “appear before the Committee and present some of the circumstances
relating to this nomination before the Committee reports it to the Senate, as I am
opposed to his confirmation.”25 In each case, the objecting Senator asked to appear
before the Judiciary Committee to state his case against the individual being
What these examples appear to show is that the Judiciary Committee policy
during this time was that a negative blue slip was not intended to prevent committee
action. Instead, a Senator’s negative assessment of a nominee was meant to express
to the committee his views on the nominee so that the chairman would be better
prepared to deal with the review of the nomination. The end result was that Judiciary
Committee chairmen did not traditionally view a negative blue slip as a sign to stop
all action on judicial nominations. This is important to note because of the
modification to this policy norm during the 84th Congress.
From 1956 through 1978, Senator James O. Eastland chaired the Judiciary
Committee and brought about the first fundamental change to the way the committee
used blue slips. During his tenure, it appears that blue slips were handled as absolute
vetoes by Senators.26 The policy was that if a Senator either returned a negative blue
slip or failed to return one at all, the committee would stop all action on a nominee.27
Evidence for this policy is suggested by the fact that no judicial nomination on
which there was a negative blue slip was rejected by the committee and then
subsequently reported to the Senate during this time period.28 In previous
24 National Archives and Records Administration, Record Group 46, Records of the U.S.
Senate, 81st Cong., Records of Executive Proceedings, Nomination Files, Judiciary
Committee, Carroll O. Switzer, Blue Slip (1950).
25 National Archives and Records Administration, Record Group 46, Records of the U.S.
Senate, 81st Cong., Records of Executive Proceedings, Nomination Files, Judiciary
Committee, M. Neil Andrews, Blue Slip (1950).
26 See “The Judiciary: Nixon Nearing Record On Nominees,” Congressional Quarterly, Dec.
27 See “The Judiciary: Nixon Nearing Record On Nominees,” CQ, Dec. 16, 1972, p. 3161;
Charles R. Babcock, “Picking Federal Judges: Merit System vs. Pork Bench,” Washington
Post, November 7, 1978, p. A4; and Sheldon Goldman, Picking Federal Judges (New
Haven, CT: Yale University Press, 1997), p. 12.
28 The Judiciary Committee did reject a judicial nomination late in Eastland’s tenure.
During the 95th Congress, the nomination of Robert F. Collins to be U.S. District Court
Congresses, the Judiciary Committee would report most nominations with a negative
blue slip to the Senate with adverse recommendations. With the decrease in
observance of the “personally obnoxious” standard, however, a Senate rejection was
no longer certain. Therefore, the committee changed its traditional blue-slip policy
and proceeded to stop all action on a judicial nomination when a home-state Senator
returned a negative blue slip or failed to return one.29
Senator Edward M. Kennedy chaired the Judiciary Committee during the 96th
Congress. Although he led the committee for only one Congress (1979-1981), he
ushered in a number of significant changes to the way judicial nominations were
handled.30 In relation to the committee’s blue-slip policy, Chairman Kennedy
informed his colleagues that when a Senator failed to return a blue slip, he would let
the full committee vote on whether to proceed.31 In a 1979 Judiciary Committee
hearing, Chairman Kennedy stated that he had
instructed the committee staff to send to both Senators from a nominee’s State
a blue slip requesting the Senator’s opinion and information concerning the
nominee. If the blue slip is not returned within a reasonable time, rather than
letting the nomination die I will place before the committee a motion to
determine whether it wishes to proceed to a hearing on the nomination
judge for eastern Louisiana was first denied approval by the Judiciary Committee on a split
vote of 5-5 on April 14, 1978; however, a subsequent motion to report favorably was
approved by a 13-1 vote on May 16, 1978. This case is distinguishable from other
committee rejections concerning blue slips on two grounds. First, the committee vote was
not an outright rejection but instead a split vote resulting in a “de jure” rejection. Second,thth
unlike previous cases during the 65 through the 84 Congresses, Collins did not represent
a direct connection with the blue slip policy. In particular, the opposition to Collins came
from Sen. Dennis DeConcini. Collins was in fact supported by his home-state senator. For
example, during the committee’s second vote on Collins, Sen. Russell B. Long came before
the committee and asked the members to “measure up to the challenge and consider this man
the way you would any other nominee.” See “Senate Committee Clears 2 Blacks as Federal
Judges,” Washington Post, May 17, 1978, p. A6.
29 Melinda Black, Elaine Shannon, and Diane Camper, “Judges: On the Merits?” Newsweek,
Feb. 12, 1979, p. 94. See also “Senate Shelves Morrissey Judgeship Nomination,”
Congressional Quarterly, Oct. 22, 1965, p. 2149; W. Dale Nelson and Fred S. Hoffman,
“Washington Washington,” The Associated Press, Jan. 25, 1979; and Editorial, “Curbing
the ‘Blue-Slip’ Veto,” Washington Post, Jan. 31, 1979, p. A18.
30 For a further discussion on Kennedy’s modifications to the confirmation process, see
Sheldon Goldman, Picking Federal Judges, p. 263.
31 U.S. Congress, Senate Committee on the Judiciary, Selection and Confirmation of Federal
Judges: Hearings Before the Senate Committee on the Judiciary, Part I, 96th Cong., 1st Sess.,
(Washington: GPO, 1979), p. 4. See also Sheldon Goldman, Picking Federal Judges (New
Haven, Conn.: Yale University Press, 1997), p. 12; and Editorial, “Curbing the ‘Blue-Slip
Veto,” Washington Post, Jan. 31, 1979, p. A18.
notwithstanding the absence of the blue slip. The committee, and ultimately the32
Senate, can work its will.
Besides Chairman Kennedy’s modification to the stated blue-slip policy, there
appeared to have been another change as well. A home-state Senator’s objection to
a nominee, in practice, did not have the same power to automatically stop committee
action as before. This unstated change can be seen in the confirmation proceedingsth
over a Virginia judgeship during the 96 Congress. Against the wishes of Virginia
Senator Harry F. Byrd Jr., President Jimmy Carter nominated James E. Sheffield to
the U.S. District Court for eastern Virginia. In committee, the nomination was
opposed by Senator Byrd, who sent a negative blue slip to Chairman Kennedy.33
Senator Byrd reportedly did not object to holding a hearing for Sheffield. On
August 26, 1980, the Judiciary Committee held a hearing on Sheffield despite the
blue slip objection. This marked the first reported instance since 1951 in which the
Judiciary Committee moved forward on a blue-slipped nomination.34 The committee
took no further action and the Senate eventually returned the Sheffield nomination
on December 16, 1980.
Chairman Kennedy established the first post-Eastland changes to the blue-slip
system. The stated modification placed the decision to move forward on a
nomination that had not received a home-state Senator’s blue slip with the
committee. The de facto alteration permitted the chairman to use his discretion to
determine if the committee would act on a blue-slipped nominee. Chairman Kennedy
said that his purpose in modifying the blue-slip policy was to allow “the Federal
courts [to] ... become more representative of the people of this Nation.”35 He added,
“we face the question of what to do about the longstanding practice of the one-
member veto — or the blue-slip process.... I will not unilaterally table a
32 U.S. Congress, Senate Committee on the Judiciary, Selection and Confirmation of Federal
Judges: Hearings Before the Senate Committee on the Judiciary, p. 4.
33 Megan Rosenfeld, “A Soft-Spoken Judge at the Center of Controversy,” Washington Post,
July 20, 1980, p. F1.
34 Sen. Paul Douglas, remarks in the Senate, Congressional Record, 82nd Cong., 1st sess., vol.
97, Oct. 9, 1951, p. 12839; U.S. Congress, Senate Committee on the Judiciary, Joseph
Jerome Drucker, of Illinois, to be United States District Judge for the Northern District of
Illinois, To Fill a New Position, report to accompany the nomination of Joseph Jeromendst
Drucker, 82 Cong., 1 sess., Executive Rept. No. 3 (Report found at National Archives andnd
Records Administration, Record Group 46, Records of the U.S. Senate, 82 Cong., Records
of Executive Proceedings, Nomination Files, Judiciary Committee, Joseph Jerome Drucker,
Executive Report (1951)); and, National Archives and Records Administration, Recordnd
Group 46, Records of the U.S. Senate, 82 Cong., Records of Executive Proceedings,
Nomination Files, Judiciary Committee, Joseph Jerome Drucker, Blue Slip (1951). Senator
Paul Douglas objected to the nominations of Joseph J. Drucker and Cornelius J. Harrington
as district judges. Despite that formal objection, the committee both held hearings and voted
to report the nominations. Both nominations were reported adversely.
35 U.S. Congress, Senate Committee on the Judiciary, Hearings: Selection and Confirmation
of Federal Judges, p. 4.
nomination.... I cannot, however, discard cavalierly the tradition of senatorial
courtesy, exception-riddled and outdated as it may be.”36
Although it was reported that Senator Strom Thurmond was going to change the
blue-slip policy in use under Senator Eastland,37 at a January 19, 1981 Judiciary
Committee organization meeting, Chairman Thurmond stated that he “would follow
the same procedure ... [enacted] under Senator Kennedy.” This meant that, “if [the
committee] do[es] not hear of a Senator objecting, if he just does not send in his blue
slip and if we do not hear within the seven days, we assume, as Senator Kennedy did,
there is no objection.” Chairman Thurmond did make a point of stating “that if either
Senator objects to a nomination we should not go forward with it.”38
Therefore, under Chairman Thurmond’s blue-slip policy, a home-state Senator
could stop all committee action on a judicial nominee by returning a negative blue
slip; however, the committee would not stop action on a nominee if the home-state
Senator failed to return it. As such, Chairman Thurmond was following Senator
Kennedy’s modification to the blue-slip policy but also stating that a single home-
state Senator still had the power to stop committee action on a nominee. Like that
of his predecessor, however, Chairman Thurmond’s blue-slip policy was not always
consistent, as shown by President Reagan’s District Court nominations in 1983 and
In 1983, reportedly at the suggestion of retiring Senator Samuel Hayakawa of
California, President Reagan selected John P. Vukasin Jr., to be U.S. District judge
for northern California.39 However, Vukasin was opposed by Senator Alan Cranston
of California, who returned a negative blue slip to the committee.40 Despite Senator
Cranston’s objection, Chairman Thurmond went ahead with Vukasin’s nomination,
and on July 21, 1983 the nomination was reported favorably on a party line vote.
This vote marked the first time since 1951 that the Judiciary Committee voted to
36 Ibid., p. 5.
37 “Smith changes method for judicial selection,” The National Journal, vol. 13, March 14,
1981, p. 459; David Pike, “The Court-Packing Plans: Politicians Gain More Savvy in
Selecting U.S. Judges,” The National Law Journal, Aug. 29, 1983, p. 1; and David Pike,
“The Appointment Process Under Carter and Reagan,” The National Law Journal, Aug. 29,
38 U.S. Congress, Senate Committee on the Judiciary, Business Meeting, unpublished
committee transcript, 97th Cong., 1st sess., 1981, pp. 6-7. The hearing can be found at the
Senate Judiciary Committee’s library.
39 Rich Arthurs, “Judicial Nominations Doggedly Backed by Administration,” The Legal
Times, Dec. 26, 1983, p.1.
40 David F. Pike, “The Court-Packing Plans: Politicians Gain More Savvy in Selecting U.S.
Judges,” The National Law Journal, Aug. 29, 1983, p. 1.
report out a nomination despite the blue slip objection of a home-state Senator.41
Once through committee, the Senate eventually confirmed Vukasin by voice vote.42
Two years later, in 1985, President Reagan selected Albert I. Moon Jr. to be a
U.S. District judge for Hawaii. In this case, both Hawaii Senators, Daniel Inouye and
Spark Matsunaga, opposed the nomination and sent back negative blue slips to the
committee.43 Although tradition dictated that negative blue slips from both home-
state Senators would prevent committee action, Chairman Thurmond decided to
move forward. On November 22, 1985, the committee held a hearing on the Moon
nomination. This marked the first reported instance in which the Judiciary
Committee acted on a nomination despite the presence of two negative blue slips.
After the hearing, the committee took no further action and the Senate eventually
returned the Moon nomination on December 20, 1985.
Like Senator Kennedy in the 96th Congress, Chairman Thurmond did not allow
the failure of a home-state Senator to return a blue slip to stop committee action.
Furthermore, the presence of one or even two negative blue slips was no longer
enough to prevent committee action. The end result was that Chairman Thurmond
substantially changed how the blue-slip policy operated. Yet it should be noted that
the Moon nomination was the only known example during this time period of a
chairman moving forward on a nomination despite the presence of two negative blue
slips. This is important because, since the blue slip is not a committee rule, the
chairman has the discretion to change the policy when deemed necessary. Therefore,
as the Vukasin and Moon cases show, the stated and practiced blue-slip policies can
at times be confusing if not contradictory to one another.
Under the chairmanship of Joseph R. Biden, Jr., the Judiciary Committee
continued to follow the blue-slip modifications put in place by Senators Kennedy and
Thurmond. However, Chairman Biden also made changes to the blue-slip policy.
During the 101st Congress, Chairman Biden issued a public statement of the
committee’s blue-slip policy. Shortly after the inauguration of George H. W. Bush
in 1989, Chairman Biden sent a letter to the President stating the committee’s blue-
The return of a negative blue slip will be a significant factor to be weighed by the
committee in its evaluation of a judicial nominee, but it will not preclude
41 See footnote 34.
42 For a more detailed discussion of Vukasin’s nomination see Rich Arthurs, “Judicial
Nominees Doggedly Backed By Administration,” Legal Times, Dec. 26, 1983, p. 1; and
David Pike, “The Court-Packing Plans: Politicians Gain More Savvy in Selecting U.S.
Judges,” The National Law Journal, Aug. 29, 1983, p. 1.
43 Memorandum from Senator Strom Thurmond to Senator Arlen Specter, Blue Slip Policy,
June 8, 2001, p. 2. (Author’s files); and “No action on Moon nomination,” United Press
International, Dec. 12, 1985, p. Washington News.
consideration of that nominee unless the Administration has not consulted with44
both home state Senators prior to submitting the nomination to the Senate.
Chairman Biden’s letter represented the first formal, written statement by a
Judiciary Committee chairman regarding the blue-slip procedure. In that letter,
Chairman Biden expressed, in what had only been practiced and not stated by a
chairman before, that the committee would no longer treat a negative blue slip as an
absolute means of stopping committee action. Presidential consultation with both
home-state Senators might be enough to move the nomination through committee
even with the presence of a negative blue slip. This was a important event in terms
of outlining a clear picture of the standards to be used in the blue-slip process. In
particular, Chairman Biden’s letter underscored that prior consultation would be a
primary factor in evaluating a negative blue slip.
The 1989 nomination of Vaughn R. Walker to be a U.S. District judge for
northern California marked the first time that Senator Biden’s policy was put to the
test. Walker was originally recommended to the President by Senator Pete Wilson
of California. California’s senior Senator Alan Cranston opposed the nominee. In
committee, Senator Cranston returned a negative blue slip to Chairman Biden, who45
stated that Cranston’s opposition would “affect Walker negatively.” However,
Chairman Biden’s statement evidently meant that only a delay in the committee’s
proceedings would occur and not an outright blocking of the nomination. After a
committee investigation, Chairman Biden moved ahead with the nomination and46
eventually Walker was reported out of the committee by a 11 to 2 vote. Soon
afterward, Walker was confirmed by voice vote on November 22, 1989.
Chairman Biden made public the standards that the Judiciary Committee would
use in considering negative blue slips. The committee had previously worked under
the policy that a negative blue slip would not necessarily prevent committee action,
however, the previous two chairmen had never publicly stated that modification to
the blue-slip policy. Moreover, Presidents tended to consult with home-state
Senators before this time but by making the requirements public Chairman Biden
placed the pre-nomination selection process in the forefront of the confirmation
process. Therefore, the letter, in stating this expectation, helped to address the
question of the blue slip’s place in the appointment process.
104th Congress to June 5, 2001, of the 107th Congress
After the Republican Party gained control of the Senate in the 1994 elections,
Judiciary Chairman Orrin G. Hatch continued Senator Biden’s practice of stating
publicly the panel’s blue-slip policy. At the start of his chairmanship, Hatch sent a
44 Sen. Joseph R. Biden, Jr., Chairman, Committee on the Judiciary, U.S. Senate, letter to
President George H. W. Bush, The White House, June 6, 1989 (author’s files).
45 Mike Robinson, “Senate Panel Pushing Ahead With Judge Candidate Despite Cranston,”
The Associated Press, May 18, 1989. See also memorandum from Senator Strom Thurmond
to Senator Arlen Spector, “Blue Slip Policy,” June 8, 2001, p. 2 (author’s files).
46 Ruth Marcus, “Stalled Judicial Nomination Advances; Panel Approves Walker Despite
Uproar Over Past Ties to Men-Only Club,” Washington Post, Nov. 17, 1989, p. A21.
letter to President William J. Clinton’s counsel, Abner J. Mikva, stating how the
blue-slip system would be observed. In the letter, Chairman Hatch said that he would
follow the “policy as articulated and practiced by Senator Biden in 1989,”47 which
was to “not preclude consideration” of a nominee “unless the Administration has not
consulted with both home state Senators.”
Two years later, in a 1997 press release, Chairman Hatch articulated a more
detailed account of his blue-slip policy. This message was a response to his
colleagues’ frustrations over not receiving “the level of consultation that they have
expected.” Chairman Hatch began by quoting Majority Leader George Mitchell (D)
on the requirements of executive and legislative consultations on nominations:
[O]ne way to avoid such confrontations [between the Senate and the White
House] in the future is for the President to engage in meaningful consultation
with the Senate before making significant nominations .... Countless historical
examples justify consultations; the public supports it; and common sense
counsels it ... In an era of divided government, the choice the two branches face
with respect to nominations is the choice we face with respect to all other
matters: cooperation or confrontation .... We are confident that meaningful
consultation can occur without reducing the role prerogatives of either branch of
government, and in a way which more fully informs the President of other points48
of view prior to rather than after a nomination is made.
Chairman Hatch went on to state that he had “sent a letter to the White House
counsel ... which clearly explains this policy.”49 In that letter, he laid out five
circumstances that would prompt the Judiciary Committee to delay or hold up a
(1) failure to give serious consideration to individuals proposed by home state
Senators as possible nominees;
(2) failure to identify to home state Senators and the Judiciary Committee an
individual the President is considering nominating with enough time to allow the
Senator to provide meaningful feedback before any formal clearance (i.e., by the
ABA or FBI) on the prospective nominee is initiated;
(3) after having identified the name of an individual the President is considering
nominating, failure to (a) seek a home state Senator’s feedback, including any
objections the Senator may have to the prospective nominee, at least two weeks
before any formal clearances are initiated, and (b) give that feedback serious
47 Sen. Orrin G. Hatch, Chairman, Committee on the Judiciary, U.S. Senate, letter to Counsel
to the President, Abner J. Mikva, The White House, February 3, 1995, (Author’s files). See
also Greg Gordon, “A Warning Sign for Left of Center Judicial Candidates,” Minneapolis
Star Tribune. January 21, 1995, p. 7A.
48 Statement by Senator George Mitchell, Congressional Record, vol 138 (1992), p. 892.
Cited in Judiciary Committee News Release, Sen. Orrin Hatch, Chairman, April 17, 1997.
49 Judiciary Committee News Release, Sen. Orrin Hatch, Chairman, April 17, 1997.
(4) failure to notify a home state Senator, and the Judiciary Committee, that
formal clearance on a prospective nominee is being initiated despite the
Senator’s objections; and
(5) failure to notify home state Senators, and the Judiciary Committee, before a50
nomination is actually made, that the President will nominate an individual.
A little over three months after the start of President George W. Bush’s
administration, several reports surfaced that Chairman Hatch was planning to modify
his blue-slip policy.51 News reports were based on two Judiciary Committee
meetings. The first, held on April 5, 2001, was a confirmation hearing on the
nominations of Larry D. Thompson to be Deputy Attorney General and Theodore B.
Olson to be Solicitor General of the United States. After the question and answer
period, in response to a question concerning the selection process by Senator Charles
E. Schumer, Chairman Hatch stated what his blue-slip policy would be under
Chairman Hatch began by stating that he would institute the same policy that “I
had asked the Clinton Administration to follow,”53 which was based on the 1989
Biden letter to President Bush and his own 1995 letter to White House Counsel
Abner Mikva. Chairman Hatch went on to describe and quote these letters in detail:
Senator Biden’s letter explained the return of a negative blue slip ordinarily does
not preclude consideration of a judicial nominee, but is given substantial weight
by the Committee in its evaluation of the nominee. Senator Biden also
emphasized the importance of pre-nomination consultation by the administration,
with home state Senators, stressing his belief, that, quote, “The nomination
process will function more effectively if consultation is taken seriously,”
unquote. Thus, as Senator Biden also wrote, quote, “If such good-faith
consultation has not taken place, the Judiciary Committee will treat the return of
50 Sen. Orrin G. Hatch, Chairman, Committee on the Judiciary, letter to Counsel to the
President, Charles C. F. Ruff, The White House, April 16, 1997. (Author’s files).
51 According to a news report, “Republicans circulated a proposal to require just one senator
from a state to sign off on a nomination.” Cited in Elizabeth A. Palmer, “Hatch Seeking To
Alter Senators’ Veto Over Judges,” CQ Daily Monitor, April 9, 2001, p. 5. For additional
accounts of the reported changes to the blue slip policy, see also Amy Fagan and Elizabeth
A. Palmer, “No Agreement Reached On Judicial Nomination Process,” CQ Daily Monitor,
April 25, 2001, p. 10; and Albert Eisele, “Senate Dems threaten to block judges,” The Hill,
April 25, 2001, p. 1 & 18.
52 In his statement, Chairman Hatch asserted, “Let me just make one thing clear. Senator
Schumer raised an important issue with Mr. Thompson regarding the role of the Senate and
advise and consent duties with respect to judicial nominations.” See U.S. Congress, Senate
Committee on the Judiciary, Hearings: Confirmation Hearing on the Nominations of Larry
D. Thompson to be Deputy Attorney General and Theodore B. Olson to be Solicitor Generalthst
of the United States, 107 Cong., 1 Sess., (Washington: GPO, 2001), p. 138.
53 Ibid., p. 138.
a negative blue slip by a home state Senator as dispositive and the nominee will54
not be considered,” unquote.
Chairman Hatch stressed the pre-nomination consultation component of the blue
slips and went on to note, “the Senate expects genuine good faith consultation by the
administration with home state Senators before a judicial nomination is made, and
the administration’s failure to consult in genuine good faith with both home state
Senators itself is grounds for a Senator’s return of a negative blue slip.” Thus,
“[w]here the administration has failed to provide good faith pre-nomination
consultation, a negative blue slip is treated as dispositive and precludes Committee
consideration of a judicial nominee.”55 Chairman Hatch warned that “if any of our
colleagues here want to veto the President’s constitutional prerogative to make his
appointments with the advice and consent of the Senate, that is a different matter, and
one which I think diverges from the policy of this Committee since as far back as I
can remember, and that is 25 years, since Senator Kennedy was Chairman of this56
Senator Richard J. Durbin questioned the policy laid out by Chairman Hatch.
Senator Durbin began by stating that “[t]he practice that has been followed in the 4
years that I have been in the Senate is different than what you have just described.
In that time, one Senator could stop a nominee from a state.” Moreover, he added,
that “there have also been times when members of the Senate Judiciary Committee,
not even from the same state as the nominee, could stop a nomination.”57
Chairman Hatch responded to Senator Durbin’s concerns. The discussion did
not, however, settle the questions over the committee’s blue-slip policy. The
exchange ended with the understanding that the blue-slip policy would be discussed
by the entire Judiciary Committee later that month.
The subsequent meeting, held in executive session on April 24, 2001, reportedly
focused on the concerns Senator Durbin and other Democratic Senators had relating
to the Judiciary Committee’s blue-slip policy. However, neither side was able to
come to an agreement on what the committee’s blue-slip policy had been or whatth
blue-slip policy would be followed in the 107 Congress. Reportedly, during this
meeting, Chairman Hatch asserted that “his policy has always been that a negative
blue slip from a single senator should be given great weight, but should not
automatically block a nomination.”58
54 Ibid., p. 138.
55 Ibid., p. 139.
56 Ibid., p. 139.
57 Ibid., p. 139.
58 Heather M. Rothman, “Committee Members Still Deadlocked On ‘Blue Slip’ Issue,” CQ
Daily Monitor, April 27, 2001, p. 10.
Democratic Senators were reportedly alarmed, stating that it was “an unfair
change in [the blue slip] policy.”59 Part of the problem in reaching a compromise
was that Democratic Senators claimed that Chairman Hatch had allowed individual
Senators to use a blue slip to prevent nominees from being confirmed during the
Clinton Administration. For example, the CQ Daily Monitor reported that “Jesse
Helms, R-N.C., used the ‘blue slip’ to block Clinton’s nominees to the bench in his
state even when they had the approval of Democrat John Edwards.”60
Chairman Hatch scheduled another committee meeting on May 3, 2001.
However, news reports stated that the Democratic members of the Judiciary
Committee “walked out of” the meeting because “they [were] being shut out of the
judicial nominations process.”61 Both parties held news conferences shortly after to
state their position on the matter of blue slips.
At the Democratic news conference, Senator Leahy said that Chairman Hatch
had changed the blue-slip policy in place during the Clinton Administration.62
Senator Leahy read an old version of Chairman Hatch’s blue slip: “No further
proceedings on this nominee will be scheduled until both blue slips have been
returned by the nominee’s home-state senators.”63 Senator Leahy went on to assert,
“this was the Republican policy when there was a Democratic president. It should
be the same policy with a Republican president.”64
Chairman Hatch, at the Republican news conference held the same day,
answered the Democratic Senators’ assertions by stating, “As I confirmed in two
letters to the White House in 1995 and 1997, during my tenure as chairman, I
continued as a matter of practice and policy to follow the committee’s blue slip
policy of my predecessor, Joe Biden.”65 That policy, Chairman Hatch stated, was a
continuation of Senator Kennedy’s blue-slip policy, which was “[a] withholding of
a blue slip or a denial of a blue slip or a negative blue slip will have great weight, but
it will not be dispositive.”66 Chairman Hatch continued by stating that the change in
blue-slip policy occurred in 1998:
59 Elizabeth A. Palmer, “For Bush’s Judicial Nominees, A Tough Tribunal Awaits,” CQ
Weekly, April 28, 2001, p. 898.
60 Amy Fagan and Elizabeth Palmer, “No Agreement Reached On Judicial Nomination
Process,” CQ Daily Monitor, April 25, 2001, p. 10.
61 Amy Fagan, “Gridlock Threatens Nominees,” CQ Daily Monitor, May 7, 2001, p. 10.
62 Federal News Service, Senate Radio-TV Gallery, The Capitol, News Conference with
Senator Patrick Leahy, Senator Charles Schumer and Senator Russell Feingold. May 3,
65 Federal News Service, Senate Radio-TV Gallery, The Capitol, News Conference with
Senator Orrin Hatch, Senator Arlen Specter, Senator Jon Kyl and Senator Jeff Sessions,
May 3, 2001.
[W]hen we had a conflict between two Republican senators, and I sent a message
to them through the blue slip policy and changed it to the point — and, by the
way, in 1998 we were getting zero — zero — consultations with the Clinton
White House. I sent them a letter saying this is serious problem, and I made it
very clear that we couldn’t put up with it. And because of the conflict with the
two Republican senators, we changed the policy to the consent of — to require67
the blue slips from both, but mainly because of the lack of consultation.... “
Chairman Hatch defended the 1998 change in the blue-slip policy by stating, “I
agreed to follow the policy of Biden up till that point , and I still followed it
after that point, except for those where there was no consultation, and even then
would not allow just one senator to stop a nominee.”68
Finally, Chairman Hatch answered the criticisms by Democratic Senators that
there were instances, during the Clinton Administration, in which an individual
Senator could block a nomination. He asserted, “[t]here again I followed the Biden
policy. If I did honor a negative blue slip as dispositive in and of itself, it was
because the White House had clearly failed to engage in any meaningful consultation
with home state senators.”69 As the statements by Chairman Hatch and Senator
Leahy illustrate, there was an ongoing factual dispute over the blue-slip policy
followed by the committee during the Clinton presidency. Both sides made
arguments supporting their cause; however, this was the last substantive debate on
the blue-slip policy before Senator James Jeffords of Vermont left the Republican
Party to become an Independent, which led to the change in party control of the
Senate. It should be noted that the May 3, 2001 meeting and the news conferences
occurred after it was known that the party balance would shift and that Senator Leahy
would become chairman.
June 6, 2001, to the End of the 107th Congress
On June 6, 2001, Senator Leahy took over as Judiciary chairman. Shortly before
the Jeffords party switch, Senator Leahy and the other Democratic members of the
Judiciary Committee stated in an April 27, 2001 letter to White House Counsel
Alberto Gonzales how the Senate should be consulted by the President in terms of
pre-nomination review. This letter, sent to Gonzales over a month before Senator
Leahy became chair of the committee, endorsed the 1997 blue-slip policy statement
“made by Chairman Hatch.” As the letter notes, “the Administration [should]
undertake to incorporate the following consultative procedures into its selection,
vetting and nominating processes”:
1.The Administration shall give serious consideration to individuals proposed
by home state Senators as possible nominees.
2.The Administration shall consult with home state Senators and the
Judiciary Committee (both majority and minority) regarding individuals the
President is considering nominating with enough time to allow Senators to
consider the potential nominee and provide a meaningful response to the
Administration before any formal clearance (i.e. by the FBI) on the
prospective nominee is initiated.
3.Should the Administration choose to begin a formal clearance process of
a nominee despite a home state Senator’s objection, the Administration
shall notify the home state Senators and the Judiciary Committee that this
is the case before the clearance process starts.
home state Senators and the Judiciary Committee shall be given at least one
week’s notice before the formal nomination is made.
5.When a nominee is sent to the Senate, supporting documentation for the
nomination shall be simultaneously sent to the Senate in order to expedite
the Senate’s evaluation of the nominee.
with Senators who seek information regarding that nomination.
Although Senator Leahy’s statement was a further refinement of Senator
Hatch’s policy regarding blue slips in terms of consultation, it was reported that
Senator Leahy would follow a different policy than Senator Hatch’s. For example,
the CQ Daily Monitor reported that Chairman Leahy indicated he “probably will
return to the practice of moving ahead with a nomination only with approving ‘blue
slips’ from both senators representing the nominee’s home state.”71 This report was
supported later on June 6, 2001, when CQ Weekly reported that, in an interview,
Chairman Leahy identified his blue-slip policy: “unless he is satisfied that both
senators from the home state of a nominee have been consulted by the Bush
administration, a nomination will not move.”72
News reports claim that Chairman Leahy not only adhered to the policy stated73
on June 6, 2001, but went further. These reports indicated that Chairman Leahy
permitted Michigan Democratic Senators Carl Levin and Debbie Stabenow to not
only block nominations of fellow Michiganders to the Sixth Circuit Court of
Appeals, but all nominations to that Circuit.74 The Legal Times cited an August 6,
70 Democratic Senators, Committee on the Judiciary, U.S. Senate, letter to Counsel to the
President Alberto R. Gonzales, The White House, April 27, 2001. (Author’s files).
71 Elizabeth A. Palmer and Amy Fagan, “Power Shift at Judiciary Could Be Problem for
Bush,” CQ Daily Monitor, May 24, 2001, p. 3.
72 Elizabeth A. Palmer, “Senate GOP Backs Down From Dispute Over Handing of
Nominees,” CQ Weekly, June 9, 2001, p. 1360.
73 For example, The Legal Times reported that Senators Barbara Boxer and John Edwards
held up two judicial nominations during the 107th Congress. See, Jonathan Groner, “A
Major Shift in the Battle for the Bench,” The Legal Times, Nov. 11, 2002, p. 8.
74 Traditionally Senators can only blue slip circuit court nominees which the President has
2001 letter written to Chairman Leahy by Senators Levin and Stabenow asking the
chairman to “halt all movement on any nominations to the 6th Circuit.”75 Reportedly,
Senators Levin and Stabenow “used their blue slips to block confirmation” of two
Sixth Circuit nominations, Jeffrey Sutton of Ohio and Deborah Cook of Ohio, during
the 107th Congress.76
Also during the 107th Congress, Chairman Leahy, along with Ranking Member
Hatch, agreed to a fundamental change to the blue-slip system. Under their
agreement the blue slips would “be treated as public information.”77 The two
Senators stated: “[w]e both believe that such openness in the confirmation process
will benefit the Judiciary Committee and the Senate as a whole.” In order to confirm
continuance of this new reform, both Senators also agreed that “this policy of
openness with regard to ‘blue slips’ and the blue slip process will continue in the
future, regardless of who is Chairman or which party is in the majority in the
Senate.”78 This agreement was adhered to, and continues, with blue slips publicly
available on the Office of Legal Policy website.79
With Senator Hatch once again chairing the Judiciary Committee, it was
reported that he would reinstate his previous blue-slip policy where “a single negative
blue slip from a nominee’s home state won’t be enough to block a confirmation
hearing.”80 Chairman Hatch told reporters, “I’ll give great weight to negative blue
slips, but you can’t have one senator holding up, for instance, circuit nominees.”81
Thus, the blue-slip policy in the 108th Congress is that only one of the home-state
Senators must return a positive blue slip before the Judiciary Committee will move
forward with a nomination — provided that the Administration engages in pre-
nomination consultation with both home-state Senators.
The stated policy was followed when, on April 1, 2003, Chairman Hatch granted
a hearing for Carolyn Kuhl of California to be U.S. Circuit Court judge for the Ninth
selected from their home-state. Thus, any attempt to prevent every nomination from the
same circuit from being confirmed is unusual.
75 “Inadmissible,” The Legal Times, Aug. 20, 2001, p. 3; and Jonathan Ringel, “Showtime
at Senate Judiciary,” The Legal Times, Sept. 3, 2001, p. 1.
76 Neil A. Lewis, “The Nation: Here Come the Judges; First the Senate, Now the Courts of
Appeals,” The New York Times, Dec. 1, 2002, p. 3.
77 Letter from Senators Patrick Leahy and Orrin Hatch, Congressional Record, vol. 147,
June 29, 2001, p. S7285.
79 Available at [http://www.usdoj.gov/olp/blueslips1.htm], visited October 21, 2003.
80 Tony Mauro, “Estrada, Sutton on the Senate Fight Card,” The Legal Times, January 27,
81 Associated Press, “GOP Move Would Help Nominees,” Washington Post, January 24,
Circuit.82 The hearing marked the first time in the 108th Congress that the Judiciary
Committee moved forward with a nomination without the support of both home-state
Senators:83 Senator Dianne Feinstein of California had returned a blue slip to the
committee.84 The Kuhl nomination appears to represent a significant change in the
blue slip policies between Chairman Leahy in the 107th Congress and Chairman
Hatch in the 108th Congress. During the 107th Congress, Chairman Leahy required
both blue slips to be returned, which meant that no action was taken on Kuhl’s
nomination. Without the return of California Senator Barbara Boxer’s (D) blue slip,
Senator Leahy had declined to advance the Kuhl nomination in the 107th Congress.
However, in the 108th Congress, even without Senator Boxer returning her blue slip,
Chairman Hatch held a hearing.
Also in the 108th Congress, shortly before the 2003 August recess, Chairman
Hatch held a hearing for Henry Saad of Michigan to be U.S. Circuit Court judge for
the Sixth Circuit. Chairman Hatch moved forward with the Saad nomination despite
the objection of Michigan Senators Carl Levin and Debbie Stabenow. This marked
the first reported instance that a nomination with two negative blue slips has had any
committee action since 1985 and only the second known case in committee history.
Senators Levin and Stabenow had returned negative blue slips on March 19, 2003.85
Frequently Asked Questions
As this report indicates, there are varying nuances to the Judiciary Committee’s
blue-slip policy. During the tenure of different chairmen, a negative blue slip may
or may not have permitted a home-state senator from stopping all committee action
on a nomination. Even the failure to return a blue slip has called into question the
ability of a chairman to move forward on a nomination. There is also the question
of consultation and the degree to which a President must consult with both home-
state Senators in the selection of a nomination. Finally, even if one understands the
blue-slip policy and the requirements it places on a President, a particular chairman’s
own policy may be different in practice than what is stated. The following questions
attempt to address some of these problems and concerns.
82 This was a re-submission of Carolyn Kuhl. In the 107th Congress, she was nominated
twice (June 22 and Sept. 4, 2001) by President George W. Bush.
83 Jennifer A. Dlouhy, “Appeals Court Nominee Kuhl Apologizes for Stance on Bob Jones
University.” CQ Today, April 2, 2003, p. 3.
84 Senator Feinstein returned her blue slip on Mar. 11, 2003 with a “reserved judgement”
note on it, which meant that the Senator had not yet made a determination on the
nomination. Although the blue slip was not a positive endorsement of the candidate,
functionally it permitted the chairman to move forward with the nomination because the
blue slip was returned without a negative statement. See Office of Legal Policy website at
[http://www.usdoj .gov/olp/blueslips1.htm] .
85 See [http://www.usdoj.gov/olp/blueslips1.htm], visited October 21, 2003.
What Is a Blue Slip?
A blue slip is a Senate Judiciary Committee custom, in which the chairman
seeks either approval or disapproval from both home-state Senators. In practice, the
chairman will send a blue colored form, which is called a blue slip, to the Senators
of the state where the President has nominated either a U.S. Circuit or District Court
nominee. Depending on the chairman’s policy at the time, a return of one or two
negative blue slips by the home-state Senators could stop further action on the
nominee and thus prevent confirmation.
What Are the Justifications for a Blue-Slip Policy?
The practice of using a blue slip can be seen as a way for Senators to have a role
in the selection of an individual who may have some impact on his/her state. Thus,
when a President submits to the Senate individuals who will either fill a federal
position in a Senator’s state or will represent the state in some capacity, the chairman
will give a blue slip to home-state Senators so that they may express an opinion on
How Many Committees Have a Blue-Slip Policy?
The Senate Committee on the Judiciary is the only committee in either the
Senate or the House of Representatives that currently employs the blue slip. Yet
many committees that have a review function on executive nominations continue to
practice, to varying degrees, the custom of senatorial courtesy that the blue slip
Who Sets the Blue-Slip Policy?
The blue-slip policy is set by the chairman of the Judiciary Committee at the
outset of every Congress. In recent years, the chairman has sent a letter to the
President stating committee policy on blue slips and expectations the committee has
of the President with regard to pre-nomination consultation with home-state Senators.
Each chairman also has the ability to make changes to the blue slip policy whenever
he or she deems it appropriate.
Why Does the Blue-Slip Policy Change?
Each chairman has the prerogative to set blue-slip policy. It generally changes
when there is a change in the party majority.
What Is the Blue-Slip Policy in the 108th Congress?
The blue-slip policy in the current Congress is that a negative blue slip is given
due consideration by the chairman but will not prevent future action by the
committee unless the President has not consulted with both home-state Senators.
What Are the Key Benchmark Dates for Blue Slips?
The following are some of the more important dates of note for blue slips:
!1917 — first appearance of a blue slip
!1917 — first appearance of a negative blue slip
!1922 — time limit placed on the return of blue slips
!1956 — first formal change in blue-slip policy since its creation
!1979 — second alteration in blue-slip policy
!1989 — first public statement of the blue-slip policy
!1998 — time limit removed on the return of blue slips
!2001 — first time blue slips made public
When Does a Blue Slip Postpone a Nomination Indefinitely?
Depending on the chairman’s policy during a given Congress, the postponement
of a nominee would either take a return of a negative blue slip or the failure of a
Senator to return a blue slip. See table on the blue-slip policy of the last six
Are Blue Slips Public Information?
Yes. As part of the June 2001 reorganization agreement, blue slips were made
public for the first time starting in the 107th Congress. The status of every blue slipth86
for the 108 Congress can be found on the Office of Legal Policy website page.
The blue slip represents an aspect of senatorial courtesy. Blue-slip policy has
undergone various changes in its 86-year history. The blue slip started out as a way
for the Judiciary Committee chairman to gain information on a judicial nomination.
From 1917 to 1956, the blue slip provided home-state Senators with a means of
notifying the chairman if the President selected an individual who was personally
objectionable to them. A negative blue slip did not stop committee action. Until the
mid-1950s, other Senators would reject a nomination on the Senate floor if the home-
state Senator would stand and state that the nominee was “personally obnoxious.”
Eventually, the blue slip evolved from an informal committee device once used to
gain information on a nominee to an important device for checking the executive
branch in the appointment process.
Since 1979, the impact of negative blue slips has varied as leadership in the
Senate Committee on the Judiciary has changed. Some chairmen have permitted
committee action on a nomination only when both home-state Senators return
positive blue slips. However, other chairmen have proceeded to consider a
nomination with receipt of only one positive blue slip. Even though recent chairmen
86 See [http://www.usdoj.gov/olp/blueslips1.htm].
have implemented different blue-slip policies, each has communicated to the
President the importance of pre-nomination consultation with both home-state
Senators. Pre-nomination consultation has been a key expectation of recent chairmen
in the evaluation of negative blue slips. The President is now expected to consult and
involve each home-state Senator in the pre-nomination phase of the selection process.
Without consultation by the White House, chairmen appear to accord greater value
to a negative blue slip submitted by a non-consulted home-state Senator.
While the Judiciary chairman controls the impact of a negative blue slip,
individual Senators can still determine the fate of a judicial nomination after it is
reported to the Senate floor. A Senator, or a group of Senators, may choose to either
place a hold on or filibuster a nomination. In each instance, at least theoretically, a
vote can be delayed indefinitely — thus preventing confirmation of the President’s
nominee. A negative blue slip, therefore, is not the only means available to prevent
the confirmation of a judicial nomination by a home-state Senator.
This report will be updated to reflect policy changes relating to blue slips.
Senate Judiciary Committee Blue-Slip Policy by Committee Chairman (1956-2003)
ChairmanYearsCongressesCommittee’s Policy on Blue Slips
mes O.1956-197884th Congress tothThere would be no further proceedings on a nomination if one home-state Senator disapproved ofa
MI95 Congressthe nominee by either returning a negative blue slip or failing to return a blue slip.
d M.1979-198196th CongressThe failure of a home-state Senator in returning a blue slip would not necessarily prevent committee
ennedy, D-MAaction on a nomination without a formal committee vote.b (In practice, it appears that Chairman
Kennedy also changed the blue-slip policy by not stopping committee action if a home-state Senator
returned a negative blue slip).
rom1981-198797th Congress tothThe failure of a home-state Senator in returning a blue slip would not necessarily prevent committee
ond, R-SC99 Congressaction on a nomination, but the committee would stop action on a nominee if a home-state Senatorc
returned a negative blue slip.(In practice, it appears that Chairman Thurmond did not necessarily
stop committee action on a nominee when a home-state Senator returned a negative blue slip).
th Congress toContinued to proceed with committee action even when a home-state Senator had not returned a
iki/CRS-RL32013seph R. Biden., D-DE1987-1995100103rd Congressblue slip. Also, the chairman asserted that a home-state Senator’s negative blue slip would be
s.orupheld “only if the administration neglects to consult with lawmakers before making thed
th Congress toA negative blue slip would “not preclude consideration” of a nominee “unless the Administration
://wiki1995-2001 104 th e
httpUT107 Congresshas not consulted with both home state Senators.” A similar policy was articulated that gave five
circumstances that would trigger a committee delay or inaction in the consideration of a judicialf
trick Leahy,2001-2002107th CongressBoth home-state Senators must return positive blue slips for committee action to proceed.g The
VTchairman also, in a joint letter with the ranking committee member, declared that all blue slipsh
would be treated as public information.
2003-108th CongressIf the chairman believes that both home-state Senators have received pre-nomination consultation
Presentfrom the President, the committee will proceed with the consideration of that nominee even if twoi
negative blue slips have been returned.
Charles R. Babcock, “Picking Federal Judges: Merit System v. Pork Bench,” Washington Post, November 7, 1978, p. A4; and W. Dale Nelson and Fred S. Hoffman. Associated
Press, January 25, 1979.thst
ongress, Committee on the Judiciary, Selection and Confirmation of Federal Judges: Hearings Before the Senate Committee on the Judiciary. Part I, 96 Cong., 1
Sess., (Washington: GPO, 1979), p. 4.thst
ongress, Senate Committee on the Judiciary, Business Meeting, unpublished committee transcript, 97 Cong., 1 Sess., 1981, p. 6. (Author’s files).
e Robinson. Associated Press, May 19, 1989 and Sen. Joseph R. Biden, Jr., Chairman, Committee on the Judiciary, U.S. Senate, letter to President George H. W. Bush,
The White House, June 6, 1989. (Author’s files).
. Orrin G. Hatch, Chairman, Committee on the Judiciary, U.S. Senate, letter to Counsel to the President Abner J. Mikva, The White House, February 3, 1995. (Author’s files).
. Orrin G. Hatch, Chairman, Committee on the Judiciary, letter to Counsel to the President, Charles C. F. Ruff, The White House, April 16, 1997. (Author’s files).
A. Palmer and Amy Fagan, “Power Shift at Judiciary Could Be Problem for Bush,” CQ Daily Monitor, May 24, 2001, p. 3; and Elizabeth A. Palmer, “Senate GOP
Backs Down From Dispute Over Handing of Nominees,” CQ Weekly, June 9, 2001, p. 1360.
tter from Senators Patrick Leahy and Orrin Hatch, inserted material, Congressional Record, vol. 147, June 29, 2001. See also Helen Dewar, “Senate Reorganization Finalized;
Democrats Pledge to Follow Tradition on Court Nominees,” Washington Post, June 30, 2001, p. A11; and Audrey Hudson, “Republicans Back Bench-picks Deal; California
Democrats Given Key Role,” Washington Times, June 10, 2001, p. A03.
ennifer A. Dlouhy, “Blue Slip or Not, Hatch Holds Judiciary Panel Hearing on Bush Court Nominee,” CQ Today, July 31, 2003, p. 8; and Helen Dewar, “Battle Over Judges
Continues,” Washington Post, July 31, 2003, p. A17.
Chase, Harold W. Federal Judges: The Appointing Process (Minneapolis:
University of Minnesota Press, 1972).
Denning, Brannon P. “The Judicial Confirmation Process and the Blue Slip.”
Judicature 85:218-226, 2002.
——. “The ‘Blue Slip’: Enforcing The Norms of the Judicial Confirmation
Process.” William & Mary Bill of Rights Journal. 10: 75-101, 2001.
Goldman, Sheldon. Picking Federal Judges (New Haven, CT: Yale University Press,
Grossman, Joel B. Lawyers and Judges: The Politics of Judicial Selection (New
York: John Wiley & Sons, 1965).
Harris, Joseph P. The Advice and Consent of the Senate: A Study of the Confirmation
of Appointments by the United States Senate (Berkeley, CA: University of
California Press, 1958).
Mackenzie, G. Calvin. The Politics of Presidential Appointments (New York: The
Free Press, 1981).
Slotnick, Elliot E. “Reforms in Judicial Selection: Will They Affect the Senate’s
role? (Part I)” Judicature 64:60-73, 1980.