The 'Blue Slip': Enforcing the Norms of the Judicial Confirmation Process

Abstract

If there is any bright side to the unbelievably rancorous confirmation battles that marked the Clinton years - which are also inevitable in the Bush Administration - it is that they have exposed to public scrutiny customs and practices that enable individual Senators to wield a de facto veto over presidential nominees (and the defensive measures available to Presidents). After 1994, for example, when Republicans regained control of the House and the Senate, senators used the power of committee chairman and the "hold" to kill nominations for cabinet positions, department heads, ambassadorships, and judgeships on what seemed to be an unprecedented scale. For this, Republicans faced intense criticism. Now, recent controversies over President Bush's judicial appointments have brought to light another obscure Senate custom, the blue slip. In this essay, I will shed light on the blue slip, its relation to the protean concept of senatorial courtesy, and examine its function in the Senate's "advice and consent" role. In Part I, I reconstruct the operation and origins of the blue slip process; Part II discusses the recent flap over the blue slip occasioned by the announcement of Bush's first judicial nominees, whose selection was nearly overshadowed by the Republicans' loss of the Senate. I contrast the process's operation in the new Senate confirmation environment with earlier descriptions of it. Part III considers whether the process is consistent with the Constitution's allocation of power to appoint and confirm nominees to federal posts. While conceding that the blue slip finds no explicit sanction in the Constitution, I argue in Part IV that it functions as a mechanism to sanction a failure by the President to seek senators' advice on judicial nominees, not just their consent. Part V then examines the possibility for reforming this much-criticized process.