The Magazine

Droit du Sénateur

Senatorial privilege vs. quality judges.

Mar 27, 2006, Vol. 11, No. 26 • By EDWARD WHELAN
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The substance of the blue-slip policy, both historically and as it applies today, is murky and disputed. The policy's contours depend primarily on four factors. First, which grounds may a senator legitimately rely on to object to a home-state nomination? May he rely simply on personal grounds, such as the fact that the nominee is the sister of his next general-election opponent? Or may he also rely on broader political or ideological differences with the nominee?

Second, what effect will the committee chairman afford a negative blue slip? Will it suffice to kill a nomination? Or will it merely be given the indeterminate promise of "substantial weight"? Does it matter whether the other home-state senator has also submitted a negative blue slip?

Third, to which judicial nominations will the blue-slip policy apply? Only to those for district judges, whose caseloads clearly relate to the home state in which the judge will sit? Or also to those for appellate judges, even though appellate judges from different states in the same circuit take part equally in the cases arising from the district courts across those various states?

Fourth, and oddly neglected, is whether the Senate majority (and thus the committee chairman) is of the same party as the president. If the Senate majority is of the same party as the president, then a negative blue slip by a minority senator operates to obstruct (to the extent of the effect accorded the blue slip) the presumed common will of the president and the Senate majority. By contrast, if the Senate majority is of the party opposing the president, then the obstructing effect of a negative blue slip by a majority senator is more readily justifiable as an exercise of power delegated to that senator by his colleagues in the majority.

How these factors interact determines how sensible any particular blue-slip policy is. If, for example, blue slips were to apply only to district-court nominees and senators were to return negative blue slips only when they had genuine personal grounds for objecting to the nominee, a committee chairman could reasonably give those negative blue slips nomination-killing effect, even where the negative blue slip came from a minority senator. After all, it should not be a difficult matter for the president to find an equally qualified nominee who does not arouse the senator's personal opposition. Conversely, where a negative blue slip can be returned for purely ideological reasons, it would seem defensible for a committee chairman to give decisive effect to that negative blue slip when it is submitted by a member of his own party, but it would seem suicidal--or, more precisely, remarkably detrimental to the interests of his own party--to do so when it is submitted by a member of the minority party.

Curiously enough, there are some individuals deeply involved in the current confirmation process who believe that this absurd policy is precisely what Arlen Specter, the committee's chairman for the past year, has adopted, both for district-court and appellate-court nominees. This belief explains why it would be helpful to Milan Smith, rather than damning, that Barbara Boxer welcomes his nomination.

Orrin Hatch, Specter's predecessor as chairman, stated clearly in 2003 that he would abide by the same blue-slip policy that Teddy Kennedy and Joe Biden had adopted when they each chaired the committee. Under what Hatch labeled the "Kennedy-Biden-Hatch blue-slip policy," the return of a negative blue slip on a nomination would be given "substantial weight," but a committee hearing and vote on the nomination would proceed. Specter has issued no such statement, and he has not yet held a hearing on any nominee with negative or unreturned blue slips.

When Hatch spelled out his blue-slip policy in 2003, the left attacked him for departing from the nomination-killing policy that he had supposedly applied as chairman in the late 1990s to nominees of President Clinton. What this attack ignored, of course, is that the situation in the late 1990s, when the president was of a different party from the Senate majority, was manifestly different from the situation today, when the president and the Senate majority are of the same party. Especially when it is acceptable to return a negative blue slip on ideological grounds, it is elementary common sense, not hypocrisy, for a committee chairman to distinguish between granting his own majority colleagues the power to block a nominee of a president of the opposite party, on the one hand, and granting a member of the minority the ability to block a nominee of a president who is of the same party as the committee chairman.