Why & How the U.S. Senate Should Reform Senators’ “Blue Slip” Veto Power over Judicial Nominees

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Washington, DC – In order to fully realize the potential of last November’s changes to the nominations process, the Fix the Senate Now coalition has been calling for the U.S. Senate to explore additional reforms. In particular, we have highlighted the need for changes to “blue slips,” a courtesy practice not mentioned anywhere in the Senate’s rules that allows senators to block consideration of federal judicial nominees from their home states. The Fix the Senate Now coalition believes that the blue slip prerogative needlessly encourages obstruction – and is particularly anachronistic after last November’s Senate reforms.  

After eliminating the filibuster’s minority veto last November for most nominees, it no longer makes sense to provide home-state senators with blue slip power – a single-member veto that can be levied without any public justification.

At a minimum, the Senate should explore reforms to add greater accountability and transparency to the blue slip process.  In particular, if a home-state senator has a problem with a nominee, they should have to air their objections in public at a hearing – not in secret in a backroom. This would encourage greater accountability and transparency, and would raise the costs of potential obstruction.  These same principles are at the heart of the “talking filibuster” provision backed by the Fix the Senate Now coalition.  To further accountability, the Senate should also return to the practice of posting the status of blue slips for each judge nominated on a transparent, easily accessible website, as was the case in the recent past.

There is recent precedent to support blue slip reform: as the Congressional Research Service stated in 2003, the blue slip policy of then-Senate Judiciary Chairman Orrin Hatch (R-UT) was that, “A return of a negative blue slip by one or both home-state Senators does not prevent the committee from moving forward with the nomination – provided that the Administration has engaged in pre-nomination consultation with both of the home-state Senators.”  In other words, senators had a consultation role, but not veto power, over home-state nominees.  A similar arrangement would be a step forward for this Senate as well.

A recent report from the Brennan Center for Justice at NYU School of Law documents how judicial vacancies remain a problem for federal trial courts, even after last November’s Senate reforms.  One important step in addressing these problems is to reform the blue slip courtesy.


For more information or to interview leaders from the Fix the Senate Now coalition, contact Michael Earls at media@fixthesenatenow.org

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