By Joseph Damele
On November 21, 2013, the Senate changed the game for judicial nominations. Previously, President Obama had faced unprecedented opposition for nominations to the judiciary. According to politifact.com, there have been 147 filibusters to derail a nomination vote for the judiciary. 79 of these were against President Obama.
The “nuclear option” stopped this by allowing cloture to occur by a simple majority rather than the 60-member majority. This did not apply to the Supreme Court, which still requires a 60-member majority for cloture. Soon after, the first post rule change confirmation of a judge occurred when Patricia Millet was given the position of associate justice to the D.C. Circuit. However, as Jeffery Toobin predicted, the blue slip was another weapon that the Republicans could use.
A blue slip is simply a letter asking for approval of the nomination by the senators from the state in which the nominee would sit if confirmed. Nothing in the Senate rules mentions this procedure, but it began in the early 20th century as a polite way to ask for the advice of the home state senator. Since then, it has evolved to something of an informal veto to block or delay nominations. Toobin took notice of this practice and noted that in states with two Republican senators, there were a greater number of vacancies even prior to the rule change.
Toobin went on to predict that a state with a Republican senator would eventually use this informal mechanism to continue to thwart the President’s nominations. After the rule change, President Obama re-nominated 54 candidates for these judiciary positions. Earlier this month, however, Senator Marco Rubio, R-Fl. did in fact use the blue slip to block the re-nomination of Judge William Thomas to the Southern District of Florida. The White House has since decided it would not nominate Judge Thomas a third time.
The interesting part of this use of the blue slip is that Senator Rubio recommended him to President Obama in 2012. Another interesting fact is that, if confirmed, Judge Thomas would be the first openly gay African American on the federal bench. Some, such as Chad Cronon (president of the Central Florida Gay and Lesbian Association), have claimed this is open hostility to the fact that Judge Thomas is a homosexual. Some believe this event related to Senator Rubio’s blue slip withholding of another African American nominee, Brian Davis, and shows his dislike of the black community. Still others believe this is simply a push to regain support from the Senator’s political base due to a botched policy statement regarding illegal Hispanic populations.
In response, Senator Rubio’s office declared two cases that Judge Thomas had presided over as the reasons for failing to return the blue slip. Due to these cases, Rubio has since questioned his judicial temperament and sentencing practices, despite the ABA finding Judge Thomas exceptionally qualified. In these cases, Judge Thomas reportedly cried when he sentenced a defendant to death for a 2002 gang rape and sentenced another defendant to 22 months in prison with 2 years house arrest for a fatal hit and run accident.
Despite what you may believe about the reasons for the failure to return the blue slip, the more important question is; should there be such mechanisms or should they be changed? The constitutionality of the blue slip is debatable and uncertain. Assuming it is constitutional, at its best the blue slip is a way for senators from the commission state to have direct input regarding the type of judges the judiciary employs in their state. It also could serve the function of coalition and deal building like many other congressional tools that promote kinship among the Senate chamber.
At its worst, the blue slip can be used, as it is today, as a tool to obstruct a President’s nominations for political, even hateful, reasons. As many other informal processes in institutions, blue slip has considerable force regardless of its wavering use and following. Ideally, this tactic would only be used for instances where perhaps the President attempted to push a nomination that was completely out of line with the state demographics or where the President and Senate have not shared ideas regarding who should receive the nomination. However, we do not live in ideal worlds and there are much better ways to receive the benefits of the blue slip without risking the possible misuses.
In build up to his main proposal, litigating the matter, Karl Schweitzer lays out a couple ways to improve the system. His first is for the Senate to establish deadlines for confirmation hearings and votes. Doing so would force all issues on the table in a timely manner allowing for full “advice and consent” and allowing individual senators to voice their concerns. As Schweitzer remarks, this does have the side effect of forcing the Senate to give up the power to uphold confirmations as a political tool, even for genuine reasons.
His second proposal is a dual branch model producing a formal procedure for the President to receive “advice” from the Senate in exchange for a quicker nomination vote. While, as Schweitzer states, this may be consistent with the Constitution (at least more so than blue slipping) the practical feasibility is slight that the two branches would collaborate in such a manner. Of course, as stated above, his third option is for litigation over Article II, Sec. II, Clause II claiming that use of tabling mechanisms and failure to vote on nominations violate the Constitution by failing to attempt consent. While litigation may settle the matter once and for all, such a plan has large costs as pushing the issue may back fire against either the Senate or President, cost all three political branches political capital and weaken the already uneasy relationships between the executive and legislative branch.
However, I believe another proposal may be suited for this problem. The core problem with Schweitzer’s first solution was that the Senate would not give up power to delay confirmations. However, a solution allowing for limited delay would alleviate such concerns. Assuming the worst, that delay is due to political opposition rather than any significant meaning, the opposing Senators will be hoping to wait for the next Presidency to nominate their choice of candidates.
The solution I put forward would create a Senate bipartisan advice committee (or change the function of the judiciary committee) that would control the nomination process. In this committee, two seats would be rotating for the Senators from the commission state, allowing them to voice any concerns. Once a nomination occurred, the committee would have a set timetable in which they would debate amongst themselves regarding the qualifications of the nominee and for the wisdom of bringing the nomination to a full vote. A simple up down vote would determine whether to: a) allow the full chamber to debate and vote under another timetable or; b) shelf the nomination for up to one year’s time in which it would return to the committee for another discussion of the matter.
The solution has the benefits the best practice use of the blue slip by allowing for input of the commission senators. It further allows the Senate to orderly resolve disputes regarding any qualification or political issues about the nominee under a clear plan. However, unlike requiring only a timetable for a full, actual vote on a nomination, the committee formulation allows reasoned discussion to occur at two periods and allows the Senate to keep its delay power intact. Doing so also is a more realistic solution to the problem than asking for meaningful cooperation between the Senate and the President, particularly in today’s political climate.
There are two other benefits to this plan. This plan’s duel structure could allow for testing of the waters prior to the full vetting process. By passing the committee, any nominee could perhaps find the full nomination easier. Thus, the plan would allow for limited early vetting of a candidate allowing the President to nomine those who may not wish to be tribute to the full process at first but are otherwise fully qualified. The other benefit is that early vetting under controlled situations could de-incentivize the nomination of polarizing figures. By providing for a quick vote to delay or end to polarizing nominations, one may avoid the incentive to cause drama and use of nominations for any sort of malicious political gain. For example, under such a model, Robert Bork would have voted upon quickly and efficiently without the drama behind the nomination.
While the informal mechanisms within the Senate are slow to change and will, probably, never be completely discarded, there is still hope. These mechanisms delay the process and only hurt the Senate by making them seem incompetent and childish. Through reasoned change, the Senate has the ability to be more efficient and less of a nuisance to the function of the government and judiciary.
 Jeffery Toobin, Editorial, Blue-Slip Battle: The Senate Obstructionists’ Secret, The New Yorker, Nov. 26, 2013.
 See generally, Karl A. Schweitzer, Comment, Litigating the Appointments Clause: The Most Effective Solution for Senate Obstruction of the Judicial Confirmation Process, 12 U. of Pa. J. of Const. L. (2010).
 John Pacenti, Administration Doesn’t Renew Thomas’ Federal Nomination; Lawmakers, Attorneys Blame Pressure from Rubio, 55 Daily Bus. J., Jan. 9, 2014 at (2014).
 See Caprice L. Roberts, Discretion & Deference in Senate Consideration of Judicial Nominations, 51 U. of Louisville L. Rev. (2012); Brannon P. Denning, The Judicial Appointments Process: The ‘Blue Slip’: Enforcing the Norms of the Judicial Confirmation Process, 10 William & Mary Bill of Rts. J. (2001).
 Karl A. Schweitzer, Comment, Litigating the Appointments Clause: The Most Effective Solution for Senate Obstruction of the Judicial Confirmation Process, 12 U. of Pa. J. of Const. L. 920-924 (2010).