End the Blue Slip

Pema Levy notes that despite the abolition of the filibuster on most judicial appointments gridlock persists:

This brings us back to Burr and May-Parker. The White House’s efforts to fill the bench are being stymied by the “blue slip” process, a Senate Judiciary Committee tradition that today gives senators considerable power over judicial nominees in their home states. When a nominee is referred to the committee, the two senators from that state are notified on a blue slip of paper. To signify their support for the nominee, they return the slip.

It’s up to the chair of the committee how to deal with a blue slip that is not returned. The current chair, Patrick Leahy of Vermont, has upheld the tradition strictly, allowing Republican senators essentially to veto the president’s picks, as Burr has done by not returning the blue slip. It’s no coincidence that most of the vacancies without nominees are in states with at least one Republican senator.

Leahy, an institutionalist who believes in rights for senators in the minority, has said he sees no reason to change his approach to blue slips unless he believes the tradition is being abused.

It’s worth noting at this point that the blue slip isn’t really a “rule.” Eliminating the filibuster is difficult because it involves obtaining a consensus among senators who benefit individually from the practice. But the blue slip can be gone tomorrow if Leahy just decided to stop enforcing it, and there’s no good reason to keep it at this late date.