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NYT: Blue Slips Must Go

Blue slips are kinda inside baseball, but they are also familiar to readers of this site. They are, of course, a tool afforded to, and used by, U.S. senators to give them a veto over federal judges who have been nominated to serve in that senator's home state. No explanation is necessary; if the senator does not return the blue slip, the nomination is ended, then and there.

Sen. Ron Johnson (R-WI) has recently drawn attention to the practice, at least among inside baseball watchers, due to his blue slipping of Judge William Pocan, whom Joe Biden had nominated for the U.S. District Court for the Eastern District of Wisconsin well over a year ago. Johnson once supported Pocan, but then changed his mind for... unclear reasons. The Senator has suggested, at various times, that the issue is that Pocan doesn't live in the city where he'd serve (Green Bay, best known as the home of the NFL's most popular and distinguished franchise), or else that Pocan was responsible for giving a too-low bail to a defendant who later got drunk and drove his car into a crowd of people, killing six.

These halfhearted explanations make little sense, however. Pocan also didn't live in Green Bay when Johnson first lent his support (and has said he would relocate, in any case), and the Judge had nothing to do with granting low bail to the vehicular manslaughterer. It appears that the Senator's change of heart was actually driven by one of two things: (1) He learned Pocan is gay, or (2) he got marching orders from above to block any and all Biden nominations to the federal bench.

In any event, the editorial board of The New York Times' editorial board is fed up, and ran an editorial yesterday calling for an end to blue slips. They observe that Senate Judiciary Chair Dick Durbin (D-IL) could "unilaterally end this blue-slip custom at any time without requiring any kind of vote or radically upending an important Senate practice," and they would like to see him do just that.

The Times is right that there's nothing sacred, or even official, about the blue slips. The (somewhat crude) theory behind the blue slips is that the Constitution requires that senators "advise and consent" on judicial nominees, and the blue slip is their opportunity to do that. If they do not return the blue slip, then that means, at least symbolically, that they have not advised and consented, and thus the demands of the Constitution have not been met.

The problem here is that this logic is full of holes. The Senate is also supposed to advise and consent on treaties, too, but that basically never happens, primarily because George Washington decided it was a waste of time, and everyone since has abided by the precedent he set. Even if we decide that the "advise and consent on judges" portion of the Constitution counts more than the "advise and consent on treaties" portion, there's nothing that says that some senators count more than others depending on where the judge will serve. Further, the blue slips have been used very differently over the years, and in most of those years, they were not vetoes. It was only back in the 1950s, when the Senate Judiciary Committee came under the control of a segregationist, that vetoes became acceptable. And even after that bigoted Judiciary chair (James Eastland of Mississippi) came up with the veto concept, the rules have been adapted a bunch of times, such that vetoes were possible in some decades but not in others. Oh, and don't forget that the vetoes have already been scuttled for appellate nominees; they are only available for district court nominees.

In short, the blue slips aren't particularly justifiable as a tradition or as a reasonable implementation of the language of the Constitution. And, given the partisanship in Washington, and the importance of judges to both sides, it's only a matter of time before the blue slips go the way of the dodo for district court nominees. The Democrats will surely consider making that change on their watch, with a bunch of judicial seats in states with at least one Republican senator to fill, and with two consecutive rough maps in 2024 and 2026 that could leave Senate Democrats in the wilderness for a long tine. That said, Dick Durbin is not exactly known for being bold, or for bucking the status quo, so the death of the blue slips in 2023 or 2024 is not a certainty by any means. (Z)

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