|The U.S. Constitution, Article Two, gives the president the authority to nominate judges to federal courts "with the Advice and Consent of the Senate." The requirement is clear, but what that means in terms of real action is anything but.
According to the Senate Judiciary Committee website, after judicial nominations are sent to the Senate for consideration, they are referred to the Senate Judiciary Committee, and senators from a nominee's home state are invited to participate in the process.
"They are provided a "blue slip" by the Committee, by which they can approve moving the nominee through the Committee process."
Senators are not required to return the blue slip. Some observers have interpreted a home-state senator's failure to return a blue slip approving a nominee as the death of that nominee's candidacy. However, there is an abundance of authority that not only questions this analysis but flatly refutes first.
First, the Judiciary Committee's own website states:
"It is important to note, however, that the return of a positive "blue slip" is not a commitment by either home state Senator to support or oppose, a pending nomination."
To restate, the blue slip is not dispositive. A home state senator can return it, and the nomination can yet fail; or the home state senator may not return the blue slip, and the nominee may still go on to have a long and distinguished career as a jurist.
The blue slip is one of many factors. In considering the power of the blue slip, it is important to note that the blue slip is mere senatorial courtesy and tradition. It is not an official rule; it is not a law.
According to JudicialNominations.org, a project of the American Constitution Society:
"The blue slip practice is not a formal part of the Judiciary Committee's rules, and the determination of just how much weight to give to a Senator's opposition to a nomination is left largely up to the chair of the committee."
According to a 2001 article by Brandon Denning in the William & Mary Bill of Rights Journal, the role and authority of the blue slip has always been muddled, has shifted over time, and has enjoyed its greatest authority in times when partisan rancor was a shadow of what it is today, and when procedural abuse of today was unimaginable.
Denning's article first notes that not returning a blue slip has traditionally contained language stating: "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." Silence - or, a failure to return the blue slip - therefore, means consent. The senator who voices no objection is giving tacit approval to the president's nomination for judge.
Denning's article then points to the general trend in use of the blue slip: most senators used it only to sign off on a nomination or to comment favorably; any delay in returning the blue slip to committee was anomalous and most senators were not influenced one way or the other by the failure of a home state senator to return a blue slip. Again, the blue slip is a courtesy, and a perfunctory one at that.
One final point - and perhaps the most important - from Denning's article is this: the blue slip, if given legal authority to per se block a nomination becomes an unconstitutional check by an individual on the mechanics of the Senate and the powers of the President to staff the federal judiciary. Even when it was in place, a filibuster required more than one person to say no to a judicial nominee. Allowing one person to block all the authority vested in the president by the Constitution perverts an institutional check on the president's power and does so under dubious legal authority at best.
What the Senate Judiciary Committee does going forward is in the hands of Vermont's Patrick Leahy, chair of the committee. Whether he gives authority to a mere courtesy in an era where such courtesy will not be reciprocated or whether he does what the Constitution requires and what federal claimants deserves remains to be seen.