The Filibuster Is Dead, But Blue Slips Are Still Alive and Kicking

| Wed Nov. 27, 2013 12:56 PM EST

Last week, when Harry Reid destroyed democracy as we know it by eliminating the Senate filibuster for judicial nominees, one of my first thoughts was, "But what about blue slips?" It's all very well to allow simple majorities to approve judges, but if Republican senators use the blue slip rule to keep them off the floor in the first place, then what good does it do?

As you may recall, the blue slip is a Senate tradition. If you're nominating a judge for, say, a New York court, the two New York senators get a say in things. If they return their blue slips, they approve of the judge. If they don't, the nomination grinds to a halt. Republicans have played games with the blue slip rule over the past couple of decades, requiring only one blue slip when a fellow Republican is president but two when a Democrat is president, but ever since the 2006 midterms Patrick Leahy has been chairman of the Judiciary Committee, and he's a pretty straight shooter. Even though the current president is a fellow Democrat, Leahy consistently requires two blue slips for all nominees, which makes it easier for Republicans to block Obama's judges. All they need is for one senator to withhold a blue slip, and the nomination is dead.

Leahy was presumably hoping that setting an example of fair-mindedness would prompt Republicans to act fairly too, and in this he was obviously wrong. Nonetheless, he hasn't changed his tune on blue slips, and TPM's Sahil Kapur wonders whether this is likely to change in the wake of filibuster reform:

"I assume no one will abuse the blue slip process like some have abused the use of the filibuster to block judicial nominees on the floor of the Senate," Leahy said. "As long as the blue slip process is not being abused by home state senators, then I will see no reason to change that tradition."

It remains to be seen whether Republicans will resort to withholding blue slips more frequently after the filibuster rule change. Some may be tempted to because it's now their most powerful weapon to thwart Obama from filling up the judiciary with his preferred nominees. If so, it'll put to the test Democrats' willingness to uphold the tradition.

Republican senators have been pretty free about using their blue slip privileges already, so I'm not sure just how much more abuse is left. Jeffrey Toobin provides a quick summary:

The list of federal judicial vacancies tells an extraordinary story. For example, there are seven vacancies on the federal district courts in Texas....Republicans don’t agree to any of Obama’s choices, and so the seats stay vacant, sometimes for years....The story is much the same throughout the parts of the South and the West where Republican senators preside. There are three vacancies in Kentucky, three more in Georgia, and two in Alabama. And it’s not true just for the district court; Leahy has honored blue slips for circuit-court judgeships, as well. There are two vacancies each on the Fifth and Eleventh Circuits, which together cover most of the states in the old Confederacy.

....Fifty-one of Obama’s nominees are pending, and the vast majority of the remainder are either very recent or in Republican-controlled states....By employing the blue slip, Republican senators can stymie Obama’s nominees (or prevent them from even being nominated) without having to resort to the filibuster.

How much worse can this get? One reason for optimism is that because Democrats have now proven they can be pushed only so far, maybe Republican senators will pause a bit before upping the ante even more. We'll see.

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