The Blue-Slip Process in the Senate Committee on the Judiciary: Background, Issues, and Options

CRS Report for Congress
Received through the CRS W eb
The Blue-Slip Process in the
Senate Committee o n t he Judiciary:
Background, Issues, and Options
Mi tchel A. Sollenberger
Analys t i n American N ational Government
Government and Finance Division
Summary
The S enate J udiciary C ommittee’s blue-slip process h as received i ncreased interest
from S enators. Traditionally, t he blue slip has b een used by some Senators to delay, and
sometimes prevent, t he confirmation of persons whom they find objectionable who have
been nom i n at ed as U.S . at t o rney, U .S . m arsh al, U.S. d istrict court j udge and U.S. court
of appeal s j udge. In recent years, vari ous changes t o t he bl ue-sl i p process h ave
eliminated the traditional veto power of blue slips. This report provides a brief
background on the b lue-slip p r o c ess, followed b y an overview o f current issues
concerni ng bl ue sl i p s, t h e d ebat e ove r t h e n e ed for a bl ue-sl i p pol i cy, and recent and
possible future changes to the p rocess. Th is report will be updated as committee actions
warrant. S ee also CRS Report R L3201 3 , The History of the Blue Slip in the Senate
Committee o n t he Judiciary, 1917-Present , b y M itchel A. S ollenberger.
Backgr ound and O ve r vi e w of t he I ssues
The S enate J udiciary C ommittee’s b lue-slip policy h as been a central component in
its consideration of nominations. This policy i s a J udici ary C ommittee custom i n which
t h e ch a i r m an s eeks t he assessm ent o f nom i n ees from hom e-st at e S enat ors. In pract i ce,
the chairman will send a blue-colored form t o t he Senat o rs o f the s tate where t he
P resi d ent h as nom i n at ed an i ndi vi dual t o b e ei t h er a U.S. circuit or district court j u d ge,
a U.S . m arshal , o r a U.S . at t o rney. If a hom e-st at e S enat or has n o obj ect i o n t o a nom i n ee,
a blue s lip is returned to the chairman with a positive response. Fo r a period of over 2 0
years (1956-1979),¹ however, i f a S enat o r h ad som e obj ect i o n t o t he nom i n ee and want ed
to stop committee action, he or she could deci de not to return the blue s lip or to return it
with a n egative response. Under s uch circu mstances the withholding of a blue s lip or a
single negative response would halt all further action on a nomination.

¹ For a historical account of the blue-slip process, see CRS Report RL32013, The History of the
Blue Slip in the Senate Committee on t he Judiciary, 1917-Present, by Mitchel A. Sollenberger.
Congressional Research Service ˜ The Library of Congress

Over t h e years, t h e b l u e - s l i p pol i cy h as been m odi fi ed t o prevent a hom e-st at e
Senator from h aving s uch absolute power over t he fate of a n o m i n e e f r o m t he state.
Today, committee action on a judi ci al nomination i s s topped only i f t he President h as
failed t o consult with the home-state S enators.
All b lue s l i ps have been made public since 2001.² Since t he blue slip is not a
committee rule, however, t he chai rman has t he di s c retion t o change t he policy when
deem ed necessary. As a result, even if the chairman has publicly stat ed a blue-slip policy,
he or she i s not obligat ed to follow it. Therefore, the stat e d a n d p r act iced blue-slip
policies can, at times, be confusing i f not contradict ory t o one another.
In the 108^th Congress, judicial nominations have ex perienced delays in confirmation
in several i nstances, s ome o f which involve bl ue slips. The b lue-slip policy raises s everal
import a n t i s s u es for t he Senate today. Fi rst, it may be useful t o define t he blue slip in
terms o f how it functions in the contemporary contex t. Although t oday t he blue slip only
stops committee action i n certain instances, for many years i t was used as an absolute veto
by some Senators.³ Second, even if defined as s tated b y t he chairman, t he blue-slip policy
can still be difficult to understand because the s tated and practiced methods of handling
blue slips m ay not match. Third, the i ncreas ed interest in blue slips has raised the i ssue
of whether t hey s hould b e u sed at all. Fi nally, s cholars are discussing how the b lue s lip
has changed and what p roposals for change would work i n t oday’s confirmation p rocess.⁴
De fe nse of the Blue-Slip Process. The blue s lip, i n its strict es t form,⁵ is a
mechanism t hat encourages the P resident to c onsult with Senators about their home-state
nominations. W ithout a blue-slip policy t he President m ay fail to see t he need to consult
a hom e-st at e S enat or i n t h e s el ect i o n p rocess.⁶ Although t his i s a primary argu ment made⁷
in support of t he blue-slip policy, there are other j ustifications as well.

² Current 108^th Congress blue slips are available at [ h ttp://www.usdoj .gov/olp/blueslips1.html ],
vi sited Nov. 5, 2003.
³ University of Massachusetts Pr ofessor Sheldon Goldman r efers t o t he traditional use of the blue
slip as the “silent veto.” See Shel d o n Goldman et al., “Clinton’s J udges: Summi ng up the
Legacy,” Judicature, vol. 84 ( Mar.-Apr. 2001), p. 238.
⁴ A number of s cholars have f o c u s e d o n t h i s issue. See Brannon P. Denning, “ T he J udicial
Confirmation P r o c e s s a n d the Blue Slip,” Judicature, vol. 85 ( Mar.-Apr. 2002); Elliot E.
Slotnick, “ T he Changing Role of t he Senate J udiciary Committee i n J udicial Selection,”
Judicature, vol. 62 ( May 1979); S a r a h A. Bi nder, “Blue Slips Sink Ships: Institutionalizing
Senatorial Courtesy,” paper prepared f or the a nnual meeting of t he Midwest P o litical Science
Association, Chicago, IL, Apr. 2003 (author’s files).
⁵ The r eference is to the blue-slip policy t hat allows a h o me -s t a t e S enator to delay or stop
committee action when he or she returns a negative blue slip.
⁶ In a 1979 Senate J udiciary Committee hearing, Attorney General Griffin Bell stated, “If t here
were no blue slip procedure a nd we [the White House] wanted to send a name i n, w e would.”
See U.S. Congress, Senate Committee on t he J udiciary, The Sele c t i o n and Confirmation of^th^st
Federal J udges: He arings Before the Senate Committee on t he Judiciary ,PartI,96 Cong., 1
sess. (Washington: GPO, 1979), p. 23.
⁷ S e e U .S. Senate J udiciary Committee, Opening Statement of Senator Patrick Leahy Bef o r e
(continued...)

Some have argu ed that the b lue s lip is a s enatorial responsibility that provides home-
state S enators with the opportunity to make the t ough decisions on judicial nominations.⁸
Another j ustification i s t hat t he blue slip provides home-state S enators with the power to
voi ce concern over nom i n at i ons t h ey feel a r e u n accept abl e t o t hem .⁹ Still others have
argued that the blue s lip is an institutionalized form of senatorial courtesy.¹⁰
For t he m o st part , t hese argu m ent s j ust i fy t he bl ue sl i p because i t ap p e a r s t o
max imize t he role of the home-stat e S enat or in the sel ection of j udici al nominations. The
net effect of traditional us e o f the blue s lip provides home-state S enators with more
l everage t o encourage t he P resi d ent t o consul t o n s uch i ssues t h an t h e S enat e possesses
collectively.
Criticism of the Blue-S lip Process. There has been criticism of t he blue-slip
process. One concern i s t hat t he blue slip has b een used by hom e-st at e S enat ors t o s el ect¹¹
judges on a political , not professional, basis. That i s , i f t he P resi d ent does not sel ect t h e
individual p referred b y a home- st at e S enat or, t he offended hom e-st at e S enat or can del ay
or prevent committee action on a judici al nomination for almost any personal, political ,
or arbi t rary reason.
Such an argument has l ed some to believe that the blue-slip proces s i s a perversion¹²
of what the founders intended. Instead of allowing the entire S en at e t o fulfill its
constitutional duty, a few individual S enat ors have improperly t aken the S enat e’s advice
and consent role and used it for t heir own b enefit. Another argument h as been made that
the b lue s lip weakens t he President’s power to select judges. S till others have found that
t h e b l u e s l i p pl aces t o o m any rest ri ct i ons on t h e ex ecut i v e b ranch and does not reward t h e
Pres i d e n t w h en h e does consult with home-state S enators. Fi nally, another argument
fi nds t h at t h e b l u e s l i p has b een t ransform ed from a devi ce t h at encourages t h e P resi dent

⁷ (...continued)
Judicial Nominations Hearing , April 1, 2003, p. 3 ( author’s files); a nd Brannon P. Denning, “ T he
‘Blue Slip’: Enforcing t he Norms of t he J udicial Confirmation Process,” William & Mary Bill of
Rights J ournal , vol. 10 ( Dec. 2001), p. 90.
⁸ Senator Paul Laxalt has argued, “I personally think t hat i t would be a s ad day i n t his committee
and i n t he Senate for t here not to be insured a senatorial prerogative, not from t he standpoint of
preempting a nybody, but from a ssumi ng our responsibility; t hat i s why we are here, Senators, t hat
is, t o call t hese tough s hots within our St ates . ” See U.S. Congress, Senate Committee on t he
J udiciary, The Selection and Confirmation of Federal Judges: Hearings Before the Senate
Committee on t he Judiciary ,p.5.
⁹ Ibid,p.5.
¹⁰ See Binder, “Blue Slips Sink Ships: Institutionalizing Senatorial Courtesy,” pp. 13-23 (author’s
files); a nd CRS Report RL32013, The History of the Blue Sli p i n t he Senate Committee on t he
Judiciary, 1917-Present .
¹¹ J onathan T urley, “Seeing Red on Blue Slips,” LosAngelesTimes, M ay 16, 2001, p. B13.
¹² Davi d Cohen of Common Cause stated, “ the i ntent of our Founding Fathers has been turned
o n i t s h e a d by the archaic blue slip system.” See U.S. Congress, Senate Committee on t he
J udiciary, The Selection and Confirmation of Federal Judges: Hearings Before the Senate
Committee on t he Judiciary ,p.63.

to consult with home-state S enators i nto a weapon that a few individual S enators u se to
ex tract unreasonable concessions.¹³
Criticism of t he blue-slip policy has largel y addressed t he ability of home-stat e
Senators to unduly i nfluence the P resident wh en he selects nominations. Others feel that
some Senators have improperly u sed t he bl ue slip, and have theref ore changed the
intended nat ure of t he confirmation process. In either cas e, the arguments make the point
that the b lue s lip is an arcane p ractice t hat t he Senate should consider ending.
Blue Slips a s a S ustained Procedure. The enduring use of the blue s lip over
its more than 80-year history arguably p rovi des p roof that Senato rs generally support t he
procedure. The b l u e s l i p , i n p art , has s ust ai n ed i t s el f b ecause i t has b een t ransform ed i nt o
an effect i v e t ool for hom e-st at e S enat ors t o u se i n t h e confi rm at i o n p rocess. As one
schol ar ex pl ai ns: “The b l u e s l i p process can be seen as a t yp e o f s anct i o n t hat h as evol ved¹⁴
to police observance o f t he confirmation proces s norms.” T h e s an ct i on blue slips
provide Senators is a d elay or veto threat on j udi ci al nom i n at i ons agai nst t he P resi d ent .¹⁵
S u c h a t hreat slowly evolved out of the earl y pract i ce o f s enat ori al court esy. One
student of the p rocess s eeks t o reinforce this understanding:
[S]enatorial courtesy may have been sufficient t o encourage s enators t o defer to the
vi ews of t he home s tate senator from t he president’s party when nominations came t o
the f loor. But it clearly was not strong enough a threat to force t he president t o
consult with interested senators before nomi n a t ions were made. Institutionalizing
senatorial courtesy in the f orm of a printed practice [ blue slips] would have conferred¹⁶
a strategic advantage on home state senators from t he president’s party.
M odi fications to the Blue-Slip Policy
Previous Blue Slip Changes. At the b eginning of a C ongress or following
change in leadership, t he J udiciary C ommittee chairman m ay choose t o m odify the b lue-
slip policy o r l eave i t unchanged. Over t he years, the b lue s li p h a s u n d ergone various
changes.
The blue s lip originat ed as a t ool used by committee chairmen t o gat her i nformation
on a nominee . S t a rting i n 1956, Chairman J ames O. Eastland changed t he strictly
information-gathering role o f t he blue slip to one in which a home-state S enat o r c o uld
stop al l action on a nomination when he or s he returned a negative blue s lip or failed t o
return one. T wenty-three years l ater, i n 1979, Chairma n E d w a r d M. Kennedy changed

¹³ Denning, “ T he J udicial Confirma tion Process a nd the Blue Slip,” p. 223.
¹⁴ “Norms ” a re customs t hat f orm without a binding lega l r ule. See Denning, “ T he ‘ Blue Slip’:
Enforcing t he Norms of t he J udicial Confirma tion Process,” p. 92.
¹⁵ Senatorial courtesy is defined as “[t]he Senate’ s practice of declining t o confirm a presidential
nominee for an office in the s tate of a s enator of the p r e s i d e n t ’ s p a rty unless t hat s enator
approves. Sometimes called ‘ the courtesy of the Senate,’ t he practice i s a customary one and not
always adhered t o. A s enator some times invoke s t he cust o m b y d e c l aring t hat t he nominee is
personally obnoxious or personally obj ectionable t o him.” See Walter K ravitz, Congressional^rd
Quarterly’s American Congressional Dictionary,3 ed. ( Washington: CQ Press, 2001), p. 231.
¹⁶ Bi nder, “Blue Slips Sink Ships: Institutionalizing Senatorial Courtesy,” p. 21.

the policy by i nforming his colleagues t hat when a Senator failed t o return a blue slip, h e
would l e t the full committee vote on whether to proceed. In 1981, the n ex t chairman,
Senator S trom Thurmond, continued Senator Kennedy’s policy, but in practice s ometimes
permitted t he movement of a j udici al nominat i o n e ven when a home-stat e S enat or
returned a n egative b lue s lip. T wenty years l a t e r , i n 2001, Chairman Patrick Leahy
modified the blue-slip policy t o allow m ovement of a j udicial nomination only when both
home-state S enators h ad returned positive b lue s lips. Fi nally, i n 2003, Chairman Orrin
Hatch changed the blue-slip policy t wice. Once, at the beginning of the 108^th Congress,
Chai rman Hatch m odified the policy t o permit committee action even i f a negative blue-
slip w a s r e t urned, provided t hat t he Pres ident h ad consulted with both home-state
Senators. The second instance occurred j ust before t he 2003 August reces s , when
Chairman Hatch s cheduled a h earing o n a j udicial nomination even t hough both home-
st at e S enat ors ret urned n egat i v e b l u e s l i p s.¹⁷
Considerations for P ossible Future Blue S lip Changes. Recent p roposals
and t he effects t hey might have on blue-slip policy i nclude the following:
Abolis h t h e B l ue-Slip System Through the Use of Timetables. In late
2002, President George W . Bush p roposed that the S enate b e required t o vote o n j udicial
nom i n at i ons not m o re t h an 12 m ont hs aft er a j udi ci al vacancy occurs.¹⁸ This c h ange
would ensure t hat n o i n d i vidual S enator coul d i ndefi ni t el y prevent S enat e act i o n o n a
judici al nomination. The 12-month time limit would, however, t ake t he enforcem ent role
pl ayed by bl ue sl i p s out of t h e confi rm at i o n p rocess b ecause t h e S enat e woul d b e requi red
to act on a j udici al nomination within the year time frame even if the home-stat e S enat or
had presented a negative blue s lip.
I n s titutionalize the Blue-Slip Process Through Formal Rules.¹⁹ This
modification, suggested by Professor Denni ng, would b enefit Senators by making the
blue-slip policy clearer because the J udiciary C ommittee would agree to a b lue-slip rule
each C ongress. If t h e b l u e-sl i p process were m ore t ransparent , Denni n g cont ends, i t
would l essen t he need for S enators t o u se out side sources (which tend to gi ve conflicting
histories of t he blue slip) t o gain i nstitutional or historical knowledge of blue s lips. On
the other hand, by creating a blue-slip rule, others s ay, t he process o f m odifying t he blue-
sl i p pol i cy for speci al or uni que ci rcum st ances m ay b ecom e t o o d i ffi cul t t o accom p l i s h,
thus d iminishing the blue s lip’s flex ibility and reducing its value. In addition, the
committee might have difficulty in securing approval for a b lue-slip rule each Congress.
Modify the Blue S lip to Function as a Request Only. This ch a n ge would
allow t he J udiciary C ommittee t o use the blue s lip as a way to obtain i nformation about
a j udicial nominee from home-st ate S enators without the p ro cess remaining an automatic
block t o committee action. For m ore t han 30 years, the J udici ary C ommittee used t he

¹⁷ Chairman Hatch has not referred t o t his i ncident as a change in his blue-slip policy. T herefore,
it is not clear if this modification i s a one-time change or something more permanent.
¹⁸ For more i nformation on President Bush’s proposal, s ee CRS Report RS21506, Implications
for t he Senate of President Bush’s Proposal on Judicial Nominations , by Betsy Palmer.
¹⁹ Denning suggests “memorializ[ing] t he c u s t o m i n a Senate [rule], or at least a J udiciary
Committee r ule.” See Denning, “T he J udicial Confirmation Process and the Blue Slip,” p. 226.

blue-slip policy i n t his fashion.²⁰ As a S enator reportedly once s tated, t h e b l u e s lip is
“useful t o t he Committee for getting t o know things . Utilized in the right way i t can aid
in developing information.”²¹ Some observers have noted that , as with the timetable
al t ernat i v e, t h i s m odi fi cat i o n w oul d t ake t he enforcem ent m echani s m²² out of the h ands
of h o m e - st at e S enat ors. The P resi dent woul d t hen b e free, t h ey say, t o sel ect anyone
regardless of the v iews of the home-state S enator.

²⁰ CRS Report RL32013, The History of the Blue Slip in the Senate Committee on t he Judiciary,

1917-Present, pp. 8-9.

²¹ Quoting from unnamed Senator. See Elliot E. Slotnick, “Reforms in J udicial Selection: Will
T hey Affect the Senate’s Role?” Judicature, vol. 64, Aug. 1980, p. 71.
²² When using t he phrase “enforcement me c h a nism” this report i s r eferring to Denning’s
conclusion that the blue s lip “functions as a mechanism t o sanction a failure by the president to
seek s e n ators’ advice on j udicial nominees, not j ust their consent.” See Denning, “ T he ‘ Blue
Slip’: Enforcing t he Norms of t he J udicial Confirmation Process,” p. 75.