Democrats are using the blue slip process to obstruct the nomination of U.S. Circuit and District Court judges. Sen. Chuck Grassley, R-Iowa, chairman of the Senate Judiciary Committee, should not allow this to continue any longer. He can and should reform the blue slip policy. The American regime is one in which the will of the majority prevails without trampling the rights of the minority under equal law.
The Senate Judiciary Committee uses the blue slip, a Senate custom, to seek approval or disapproval of the home-state Senators on judicial nominees.The judiciary committee sends a blue slip to these Senators, who may return it with a positive or negative opinion or it may not be returned at all. Local judges have a significant impact on the home-state of Senators and this system allows them to make their opinion known.
The blue slip originated out of senatorial courtesy, the deference and respect one Senator affords another. This includes the practice of allowing Senators from the home-state of the nominee — originally of the same party as the president — to block nomination to a post within the state. The Senate typically gives deference to the stance of the home-state Senator.
The first known use of the blue slip occurred in 1917 and its practice has varied over time. For example, in its first iteration from 1917 to 1955, the blue slip allowed home-state Senators to express their objections but they could not derail a nomination. The Judiciary Committee could still move forward on a nomination, and the objecting Senator would be able to air his complaint on the floor.
This custom has varied in practice over time. It is not a sacrosanct tradition nor a Senate rule. It is a means for the opposition to give advice, not control the process.
Senate Majority Leader Mitch McConnell, R-Kentucky, wrote in October for National Review Online that he is ready to prioritize the appointment of judges. Nominees who are passed out of the Senate Judiciary Committee will be made a Senate priority.
The chairman of the Senate judiciary committee sets the policy covering the blue slip. Grassley should not hesitate to modify the policy as necessary to further deliberation and allow for the nomination of judges who will shape the legal system for decades to come.
Zachary Rogers is student in the Van Andel Graduate School of Statesmanship.