President Donald Trump’s latest round of judicial nominees could soon face an unexpected obstacle on their path to nomination — Senate Republicans.
The White House announced Monday that Trump will submit his first slate of judicial nominees to the Senate this week, naming ten candidates to judicial vacancies around the country. Though the list enthused many in right wing legal circles — it was cultivated with the input of the Federalist Society and the Heritage Foundation — the nominees must also grapple with a Senate tradition that cedes significant leverage to Democrats and enjoys the support of most GOP senators.
By Senate convention, senators from states where judicial vacancies occur submit an opinion or a “blue slip” giving a positive or negative evaluation of a nominee named to that vacancy. As a general matter, the Senate Committee on the Judiciary will not convene a hearing for a nominee until the relevant senators submit their blue slips, effectively giving home state senators veto power over judicial nominations.
Several of Monday’s nominations were made to vacancies in states with at least one Democratic senator, including Michigan Supreme Court Justice Joan Larsen, nominated to a Michigan seat on the 6th U.S. Circuit Court of Appeals, Minnesota Supreme Court Justice David Stras, nominated to a Minnesota seat on the 8th Circuit, and Notre Dame Law School professor Amy Coney Barrett, nominated to an Indiana seat on the 7th Circuit.
Though it’s not yet clear that Democratic senators will refuse to submit blue slips for nominees to vacancies in their states, most Senate Republicans have made clear they strongly support the blue-slip tradition, and are unwilling to abolish it, despite pressure from outside Congress to use any means necessary to confirm Trump’s nominees. Judiciary Committee chairman Sen. Chuck Grassley has indicated he will honor the blue slip tradition, as did his Democratic predecessor, Sen. Patrick Leahy. Other Judiciary Committee Republicans have expressed support for the process, as Politico’s Seung Min Kim reported Monday.
“It’s always advisable to consult home state senators,” University of Richmond School of Law professor Carl Tobias, an expert on judicial nominations, told The Daily Caller News Foundation. “The last several presidents going back as far as George H. W. Bush tended to consult when they could.” Tobias said that a collaborative nomination process of the sort President Reagan ran, in which senators provided a ranked list of three candidates to the White House from which the administration made a selection, tends to minimize conflict and produces the best results.
He also explained that in the aftermath of the Senate’s abolition of the filibuster for Supreme Court nominees, blue slips are effectively the only tool the minority party has to block judicial nominations, making it one of the last vestiges of consensus in a chamber with a tradition of amity.
“I think it takes on added importance after the nuclear option was used,” he told TheDCNF. “It provides an important protection for minority rights and it’s one of the few that the minority has now.”
Tobias characterized GOP support for blue-slips as a positive sign.
“It reflects a great deal of courtesy to their colleagues, and the fact that most senators realize they won’t always be in the majority and may want to have these protections should they end up in the minority again,” he said, cautioning that Senate Republicans should expect pressure from other quarters to end the blue slip tradition.
Few in the conservative commentariat have been as critical of blue slips as Hugh Hewitt, a radio host and MSNBC contributor who teaches at Chapman University School of Law. Hewitt polemicizes against blue slips regularly on his radio program, and has urged their abolition in recent columns.
“[The framers] never intended one person — not even the president, who is elected by the entire country — to wholly control the fate of a judicial nomination, which is what the blue-slip practice has often become,” he wrote in a recent column.
“To be independent and vigorous, to be populated by the best and the brightest, the federal judiciary needs to be free of this hoary practice,” he added.
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