The Senate won’t confirm these choices. It’s not like they voted against him; they just don’t vote at all.
What is the government supposed to do, leave these posts vacant?
If the Constitution says the Senate must consent to appointments, wouldn’t it be novel and fair for a judge to rule they must meet their Constitutional obligations and have a vote?
BLUE SLIP POLICY:
The blue slip policy is an uncodified Senate tradition used by the Senate Judiciary Committee to gather feedback from home-state senators on presidential nominees for federal district courts, circuit courts, and U.S. attorneys.
How It Works
• The Paper Form: The chair of the Senate Judiciary Committee sends a physical blue slip of paper to the two senators representing the home state of a judicial nominee.
• Approval or Opposition: Senators check a box to indicate whether they approve or disapprove of the nominee, or they can choose not to return the slip.
• Discretionary Power: The policy is not written into formal Senate rules. How much weight a negative or unreturned slip carries depends entirely on the chair of the Judiciary Committee.
Key Rules & Historical Shifts
• Circuit vs. District Courts: In 2017, the committee changed the policy so that circuit court nominees no longer require two positive blue slips to proceed to a hearing. However, the policy for U.S. district court nominees has traditionally maintained the requirement of home-state senator consultation and support, though enforcement varies by committee leadership.
• Historical Precedent: Originating in 1917 under Chairman Charles Culberson, the blue slip has historically functioned as an incentive for the White House to consult with home-state senators before making lifetime judicial appointments.
• The Debate: Critics argue the process is often used as a tool of political obstruction to stall or block qualified nominees, while supporters view it as an essential constitutional check to protect home-state representation and the “advice and consent” role of the Senate.
Detailed legislative overviews are available via the Library of Congress and Wikipedia.
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Congress.gov
The Blue Slip Process for U.S. Circuit and District Court Nominations (1917-Present) | Congress.gov | Library of Congress
Origin: First used in 1917 (65th Congress) under Chairman Charles Culberson as a consultation form for U.S. circuit and district c...
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Alliance for Justice
History of Blue Slips in the Senate - Alliance for Justice
The Senate’s blue slip policy allows home-state senators to signal their approval or disapproval of a judicial nominee appointed t...
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Grassley.senate.gov
Q&A: Blue Slips
Q: What is the blue slip tradition in the U.S. Senate? A: The blue slip refers to a paper form, literally a blue piece of paper, t...
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