Fellow MoJoer Nick Baumann tweets that “too much of the coverage of Obama and judges has not mentioned Sen. Leahy and the blue-slip rule.” That’s true! One of the Senate’s oldest traditions is that judicial nominees require approval from their home-state senators before they can move forward, and that approval comes in the form of a blue slip returned to the chairman of the Judiciary Committee. The recent history of the blue slip is surprisingly slippery, if you’ll excuse the pun, but here’s my best take at a handy potted history of the blue-slip rule:
Pre-1994: Generally speaking, only one blue-slip is needed for a nominee to move forward.
1995-2000: Republicans take control of Senate and decide that two blue slips should be required. This makes it easier to kill Clinton nominees.
2001: George Bush is elected president. Republicans no longer want to make it easy to block nominees, so they return to the rule that only one blue-slip is required to move forward.
2001-02: Jim Jeffords defects, putting Democrats back in control of the Senate. They return to the rule requiring two blue-slips to proceed.
2003: Republicans win back control of the Senate. They up the ante by effectively moving to a zero blue-slip rule: they’ll allow hearings on nominees even if no senators return blue-slips. Democrats threaten to filibuster over this rather obvious abuse of power and insist on a return to the two blue-slip rule.
2007-Present: Democrats win control of the Senate and Pat Leahy of Vermont becomes chairman of the Judiciary Committe. Leahy is a traditionalist who maintains the two blue-slip rule.
In addition to plenty of other things, this is one of the reasons that it’s been so hard for Obama to move judges through the Senate. When they were in power, Republicans were pretty aggressive about changing the blue-slip rule to suit their needs. Leahy hasn’t done that: he’s maintained the two blue-slip rule even though it hurts Obama’s nominees thanks to aggressive Republican refusal to approve even moderate judges. Here’s Leahy last year:
As Chairman of this Committee, I have steadfastly protected the rights of the minority. I have done so despite criticism from Democrats. I have only proceeded with judicial nominations supported by both home state Senators. That has meant that we are not able to proceed on current nominees from Arizona, Georgia, Nevada, and Louisiana. I even stopped proceedings on a circuit court nominee from Kansas when the Kansas Republican Senators reversed themselves and withdrew their support for the nominee. I had to deny the Majority Leader’s request to push a Nevada nominee through Committee because she did not have the support of Nevada’s Republican Senator. I will put my record of consistent fairness up against that of any Judiciary chairman.
Would Democrats be better off if Leahy was more flexible on blue slips? Or, even in the face of historic GOP obstructionism—nominees who get two blue slips these days still risk being filibustered even though not a single senator actually objects to them—should Democrats maintain the rule they insisted on when Republicans were in power? You can make up your own mind about this. But it’s definitely part of the whole story.