You can’t understand the judicial-confirmation process if you don’t understand the rules governing the process, so it’s disappointing to see this otherwise informative Washington Post article yesterday assert that Senate majority leader Mitch McConnell “did away with ‘blue slips,’ which allowed senators to contest judicial nominees from their home states.”
The largest error in this assertion is the failure to distinguish between appellate and district nominations. In late 2017, then-Senate Judiciary Committee chairman Chuck Grassley (not McConnell) demoted the blue slip for appellate nominations: No longer would home-state senators be able to veto an appellate nominee on ideological grounds. Instead, the blue-slip privilege would operate only to ensure that the White House had adequately consulted with home-state senators about the nomination. As Grassley put it, he was “restoring the traditional policy and practice of the vast majority of my predecessors over the past 100 years.” (By Ian Millhiser’s account in Vox account, it was Democratic senator Pat Leahy, Judiciary Committee chairman from 2007 through 2014, who elevated the blue slip to a veto, in a departure from earlier practice.) New Judiciary Committee chairman Lindsey Graham has maintained that blue-slip policy.
By contrast, the blue slip for district nominees remains in full force: it gives a veto to home-state senators. That basic reality is essential to understanding why, for example, there are dozens of longstanding district-court vacancies without any nominees; why Trump has re-nominated and appointed various of President Obama’s judicial nominees as well as other nominees with decidedly liberal records; and why more than two dozen Republican senators last week voted against two of Trump’s district nominees.
While I’m at it, I’ll also note that the article’s assertion in its opening sentence that Trump “has remade the federal judiciary, ensuring a conservative tilt for decades” (my emphasis), is undermined by the data the article presents. Trump is off to an excellent start. But appointing one in four appellate judges doesn’t ensure anything for decades, and the fact that “[t]wo-thirds of the 50 circuit court judge slots filled with Trump appointees were previously held by other Republican-appointed judges” highlights that the gains so far, while important, are incremental, not transformational.