When is senatorial courtesy a factor

Lily Adams, Harris' communications director, said, [64]. He said he reached out to Feinstein on multiple occasions and added Harris "refused to engage with the White House at any level, whatsoever on the issue. The senators wrote: [66]. We are writing today to inform you that, as previously communicated, in order to properly serve the interests of Oregonians we cannot return a blue slip on any judicial nominee that has not been approved by our bipartisan judicial selection committee.

As you are aware, in May, we wrote you to explain Oregon's long bipartisan tradition of working together to identify the most qualified candidates for judicial vacancies. As Senators charged with the task of advice and consent in the selection of candidates, we take our responsibility to identify and recommend candidates to fill Oregon judicial vacancies very seriously. We have a long history of organizing a committee charged with thoroughly vetting applicants from the Oregon legal community.

At that time, we communicated our intent to begin our selection process with the goal of providing you with a list of names for you to consider. We encouraged you to direct all potential nominees to our selection committee.

Unfortunately, it is now apparent that you never intended to allow our longstanding process to play out. Instead, you have demonstrated that you were only interested in our input if we were willing to preapprove your preferred nominee. Disregarding this Oregon tradition returns us to the days of nepotism and patronage that harmed our courts and placed unfit judges on the bench. The judicial selection process is not a rubber stamp, and the insinuation that our offices were purposefully delaying the process is an indication of the partisanship with which you are pursuing this nomination.

One of Brennan's home state senators, Tammy Baldwin D , did not return a blue slip for Brennan's nomination. Baldwin cited the president's decision to appoint a nominee outside of the regular practice in Wisconsin as a reason for withholding her blue slip. I am extremely troubled that the President has taken a partisan approach that disrespects our Wisconsin process.

Stras began his service on the state's supreme court in Prior to his judicial service, Stras worked in academia, having clerked for U. In May , Trump announced Stras' inclusion in a list of 21 potential nominees for any vacancies on the U. Supreme Court that could occur during his administration. The first of these vacancies, the vacated seat of Justice Antonin Scalia , was filled by Neil Gorsuch.

On September 5, , in a statement released on his Facebook page , U. Senator Al Franken D-Minn. Franken's colleague in the Senate from Minnesota , Sen. Amy Klobuchar D , also released a statement on September 5, , in which she indicated, "while I don't agree with all of his decisions, I felt it was important to actually look in depth at his record.

I learned that for the vast majority of the cases he has respected precedent and sided with the majority, which has included both Democratic- and Republican-appointed judges. While Justice Stras was not my choice for the 8th Circuit Court, it is my view that he deserves a hearing before the Senate. Regarding Franken's decision to withhold a blue slip for Stras' nomination, Klobuchar stated, "I also respect the fact that Senator Franken has an equal role to play here.

Under Senate practice, both Senators from a judicial nominee's home state must allow that nominee to have a hearing. Like Judiciary Chairman Chuck Grassley, I support the practice as it is a check and balance regardless of whether a state is represented by two Democrats, two Republicans or one Democrat and one Republican. The policy has resulted in decision-making for judges across party lines.

This policy has held true throughout the entire Obama administration, including when Republicans ran the Senate and when Democrats ran the Senate.

Changing this policy would have serious ramifications for judicial nominations in every state in the country. Given this important policy, and given Senator Franken's view that Justice Stras should not be allowed a hearing in the Senate, the White House will need to provide additional names for the 8th Circuit position.

Franken was the first senator in the th United States Congress to publicly withhold a blue slip for a federal appeals court nominee. Senate voted to confirm Stas to the U. Court of Appeals for the 8th Circuit on January 30, Click here for more information about Stras' judicial nomination.

From to , Republicans controlled the Senate and the blue slip policy was not enforced as strictly by then-Chair Orrin Hatch R-Utah. According to Toobin's report, Sen. Hatch's successor as chairman, Patrick Leahy D-Vt.

As long as the blue-slip process is not being abused by home-state senators, then I will see no reason to change that tradition.

Leahy adopted a policy where, as he noted in , "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. Ballotpedia features , encyclopedic articles written and curated by our professional staff of editors, writers, and researchers. Click here to contact our editorial staff, and click here to report an error.

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How do I update a page? Election results. Privacy policy About Ballotpedia Disclaimers Login. I want to separate it Blue slips for district court judges has been time honored and I think needs to stay There is a question now does it apply to circuit court judges. The idea that an individual senator could veto in effect a nominee at the circuit court level is really unprecedented and I think needs to be carefully looked at.

This isn't a partisan issue, either — this allows Republican senators to prevent Democratic presidents from confirming unqualified or inappropriate judges for their home states, and vice versa. The blue-slip process encourages bipartisanship, too, and it increases the chances of consensus candidates.

Ending the blue-slip process would diminish the ability of senators to provide input based on the local needs of their states, making it increasingly difficult for the Judiciary Committee to function in a bipartisan way. I repeatedly told the White House I wanted to reach an agreement on a package of 9th Circuit nominees, but last night the White House moved forward without consulting me, picking controversial candidates from its initial list and another individual with no judicial experience who had not previously been suggested.

Following an uneventful first 20 years of Senate confirmations, in which all but one of 19 nominees were approved quickly, the confirmation process went through a turbulent 80 years during which the Senate rejected more than one-fourth of nominees.

Law Professor Richard D. The probability of rejection then declined gradually, and by it was close to zero. George Washington had established a long-lasting precedent of attempting to have a geographically balanced Supreme Court.

Beginning in , confirmation battles began again in earnest, as three nominees were rejected between and In , Judge Bork was rejected in a politically charged atmosphere, heightened because the voting behavior of the resigning Justice Lewis F.

Powell , had determined a number of important decisions. Richard D. Although not mentioned in the Judiciary Committee rules, blue slips are an informal practice unique to the committee, which has historically used blue slips on all U.

Blue slips have been employed to block nominations in one of two ways, depending on the preferences of the Judiciary chairman. Judicial nominations have been blocked by a Senator either returning a negative blue slip or failing to return a blue slip altogether.

Over the years, there have been various modifications to these basic practices. In the case of U. The Senator may then return the blue slip to the Judiciary Committee with comments on the particular nominee in question.

In most cases, the blue slip is considered to be a pro forma gesture and will be given a positive review by the Senator; however, in a select number of cases a negative review may occur. For U. The Judiciary Committee will give blue slips only to the Senators of the retiring judge's home state.

This tradition comes from the practice of reserving circuit court positions for each state to ensure proportional or equal state representation for each circuit.

If a negative blue slip is received, the chairman may take the following actions on the nominee: 1 stop all committee proceedings; 2 move forward but give added weight to the unfavorable review; or 3 proceed without notice of the negative review.

Since the late s, the committee has generally used the latter two actions when dealing with a negative blue slip. The precise date on which the Judiciary Committee first used the blue-slip procedure is not known.

The committee has not made the blue slip part of its official rules for more than 30 years, 11 and this is still the case in the th Congress. Culberson of Texas. This impression is based on the appearance of the first known blue slip in the 65th Congress At the time, Senator Culberson was chairman of the Judiciary Committee, a capacity he served in from the 63rd through the 66th Congresses The documentary evidence of this time period suggests that Senator Culberson may have created the blue slip.

From the 65th Congress onward almost every judicial nominee's file includes a blue slip. Prior to this time 56thth Congresses , the files of judicial nominees reveal no evidence of blue slips. Judiciary Committee materials at the National Archives do not provide a specific explanation for the creation of the blue slip; however, they may help illuminate its early history. For instance, although the White House and the Senate were controlled by the Democratic Party, there was periodic tension between the two branches, and this condition may have been a factor in the blue slip's creation.

Of particular interest is the creation of blue slips at the same time as the adoption of Senate Rule XXII in , which permits Senators to end a filibuster by invoking cloture. In that year, S. The basic structure of the blue slip has not changed substantially in the 86 years since its creation. For the first 27 years , the blue slip was actually handed to senators as a folded blue "slip" of paper. The blue slip form, printed on Judiciary Committee letterhead, would contain the date, the identity of the nomination, and the name of the Senator.

At the top, the blue slip stated, "Sir: Will you kindly give me, for the use of the Committee, your opinion and information concerning the nomination of At the bottom of the page, lines were left for the Senator to reply and provide comments concerning the nomination.

This structure did not change until the 67th Congress, when, in , Chairman Knute Nelson R of Minnesota placed below the introductory text the following statement: "Under a rule of the Committee, unless a reply is received from you within a week from this date, it will be assumed that you have no objection to this nomination. After that change, the next major modification to the blue-slip policy came during the chairmanship of Senator Strom Thurmond, when the Senator removed from the blue slip the clause, "Under a rule of the Committee," and left the remainder: "Unless a reply is received from you within a week from this date, it will be assumed that you have no objection to this nomination.

In , Chairman Orrin G. Hatch replaced the traditional, "Unless a reply is received from you within a week from this date, it will be assumed that you have no objection to this nomination" with the following text: "Please return this form as soon as possible to the nominations office in Dirksen G No further proceedings on this nominee will be scheduled until both slips have been returned by the nominee's home state senators.

Shortly after the elections, when Senator Patrick Leahy held the chairmanship of the Judiciary Committee, 19 the blue slip again was modified. Instead of reinstating the Thurmond blue slip statement of, "Unless a reply is received from you within a week from this date, it will be assumed that you have no objection to this nomination," Chairman Leahy inserted the following statement, "Please return this form as soon as possible to the Committee office in Dirksen Chairman Leahy also modified the introduction by substituting, "Will you kindly give me, for the use of the Committee, your opinion and information concerning the nomination of," with the statement of "Please give me your opinion concerning the following nomination now pending before the Senate Judiciary Committee.

The current blue slip form has retained Senator Leahy's phrasing and form except room number designation changes. The first example found of a Senator using a blue slip to oppose a judicial nomination was in the spring of 65th Congress. President Woodrow Wilson had recently nominated U. Hardwick returned a negative blue slip on April 9, In his blue slip reply, Senator Hardwick wrote, "I object to this appointment -- the same is personally offensive and objectionable to me, and I can not consent to the confirmation of the nominee.

As such, Whipple's nomination was reported, albeit adversely, to the Senate, where he was rejected without a recorded vote on April 23, The record on the Judiciary Committee's formal written rule on blue slips is unclear.

Even if complete records were kept on blue slips, a chairman's policy may have been different in practice than what was stated.

Thus, determining the particular policy at any given time can be difficult. Research of historical records and newspaper accounts reveals, however, the following Judiciary Committee policies on the blue slip for each of the last 48 Congresses Each section will highlight the chairman's stated blue-slip policy and show, when necessary, instances where the policy differed, in practice from the stated blue-slip policy.

In addition, the table at the end of this report provides information on the Senate Judiciary Committee's blue slip policy for each of the last 21 Congresses, dating back to The table begins in because it was then that the Judiciary Committee began to permit Senators to use the blue slip as a way to block judicial nominations. The table is arranged chronologically by the date in which a change occurred in the blue-slip policy of the Senate Judiciary Committee.

Working from left to right, column one consists of the name of the Judiciary Committee chairman. Columns two and three list the years and Congresses that a particular blue-slip policy was in use. Finally, column four describes the Judiciary Committee's blue-slip policy for those years and Congresses. Chairman Culberson's written blue-slip policy was to merely ask the opinion of the home-state Senators on a particular judicial nomination.

A specified rule limiting the amount of time to return a blue slip did not become part of the Judiciary Committee's stated policy until when Chairman Knute Nelson placed it on the blue-slip form in the 67th Congress. No reason was given for that modification, nor does the historical record point to any event that would have given cause for this change.

From the 65th through the 84th Congresses, no chair of the Judiciary Committee allowed any negative blue slips to automatically veto a nomination. For example, despite the blue-slipping of U.

Whipple by Senator Hardwick of Georgia, the chairman still moved ahead with a hearing and even a committee vote. A blue slip apparently did not give a Senator an absolute right to block a judicial nomination and prevent committee action. This norm can be seen in the statements made by individual Senators who asked if they could appear before the Judiciary Committee to express their objections to the particular nominee that they were blue-slipping.

For example, in Senator Theodore G. Bilbo returned a negative blue slip on Edwin R. Holmes, who had been nominated to be U. Circuit Court judge for the fifth circuit. On his blue slip, Senator Bilbo stated, "I positively object to Holmes. Fourteen years later , Senator Bourke B. Hickenlooper, after noting on his blue slip that he "vigorously object[ed]" to the nomination of Carroll O. Switzer to be U. District Court judge for the southern district of Iowa, wrote, "I shall be glad to appear before your committee on this matter.

What these examples appear to show is that the Judiciary Committee policy during this time was that a negative blue slip was not intended to prevent committee action. Instead, a Senator's negative assessment of a nominee was meant to express to the committee his views on the nominee so that the chairman would be better prepared to deal with the review of the nomination. The end result was that Judiciary Committee chairmen did not traditionally view a negative blue slip as a sign to stop all action on judicial nominations.

This is important to note because of the modification to this policy norm during the 84th Congress. From through , Senator James O. Eastland chaired the Judiciary Committee and brought about the first fundamental change to the way the committee used blue slips. During his tenure, it appears that blue slips were handled as absolute vetoes by Senators. Evidence for this policy is suggested by the fact that no judicial nomination on which there was a negative blue slip was rejected by the committee and then subsequently reported to the Senate during this time period.

With the decrease in observance of the "personally obnoxious" standard, however, a Senate rejection was no longer certain. Therefore, the committee changed its traditional blue-slip policy and proceeded to stop all action on a judicial nomination when a home-state Senator returned a negative blue slip or failed to return one.

Senator Edward M. Kennedy chaired the Judiciary Committee during the 96th Congress. Although he led the committee for only one Congress , he ushered in a number of significant changes to the way judicial nominations were handled.

Besides Chairman Kennedy's modification to the stated blue-slip policy, there appeared to have been another change as well. A home-state Senator's objection to a nominee, in practice, did not have the same power to automatically stop committee action as before. This unstated change can be seen in the confirmation proceedings over a Virginia judgeship during the 96th Congress.

Against the wishes of Virginia Senator Harry F. Byrd Jr. Sheffield to the U. District Court for eastern Virginia. In committee, the nomination was opposed by Senator Byrd, who sent a negative blue slip to Chairman Kennedy.

Senator Byrd reportedly did not object to holding a hearing for Sheffield. This marked the first reported instance since in which the Judiciary Committee moved forward on a blue-slipped nomination. Chairman Kennedy established the first post-Eastland changes to the blue-slip system. The stated modification placed the decision to move forward on a nomination that had not received a home-state Senator's blue slip with the committee.

The de facto alteration permitted the chairman to use his discretion to determine if the committee would act on a blue-slipped nominee. Chairman Kennedy said that his purpose in modifying the blue-slip policy was to allow "the Federal courts [to] I will not unilaterally table a nomination I cannot, however, discard cavalierly the tradition of senatorial courtesy, exception-riddled and outdated as it may be.

Although it was reported that Senator Strom Thurmond was going to change the blue-slip policy in use under Senator Eastland, 37 at a January 19, Judiciary Committee organization meeting, Chairman Thurmond stated that he "would follow the same procedure Therefore, under Chairman Thurmond's blue-slip policy, a home-state Senator could stop all committee action on a judicial nominee by returning a negative blue slip; however, the committee would not stop action on a nominee if the home-state Senator failed to return it.

As such, Chairman Thurmond was following Senator Kennedy's modification to the blue-slip policy but also stating that a single home-state Senator still had the power to stop committee action on a nominee. Like that of his predecessor, however, Chairman Thurmond's blue-slip policy was not always consistent, as shown by President Reagan's District Court nominations in and Vukasin Jr.

District judge for northern California. This vote marked the first time since that the Judiciary Committee voted to report out a nomination despite the blue slip objection of a home-state Senator.

Two years later, in , President Reagan selected Albert I. Moon Jr. District judge for Hawaii. In this case, both Hawaii Senators, Daniel Inouye and Spark Matsunaga, opposed the nomination and sent back negative blue slips to the committee. On November 22, , the committee held a hearing on the Moon nomination. This marked the first reported instance in which the Judiciary Committee acted on a nomination despite the presence of two negative blue slips.

After the hearing, the committee took no further action and the Senate eventually returned the Moon nomination on December 20, Like Senator Kennedy in the 96th Congress, Chairman Thurmond did not allow the failure of a home-state Senator to return a blue slip to stop committee action.

Furthermore, the presence of one or even two negative blue slips was no longer enough to prevent committee action. The end result was that Chairman Thurmond substantially changed how the blue-slip policy operated.

Yet it should be noted that the Moon nomination was the only known example during this time period of a chairman moving forward on a nomination despite the presence of two negative blue slips. This is important because, since the blue slip is not a committee rule, the chairman has the discretion to change the policy when deemed necessary.

Therefore, as the Vukasin and Moon cases show, the stated and practiced blue-slip policies can at times be confusing if not contradictory to one another. Under the chairmanship of Joseph R. Biden, Jr. However, Chairman Biden also made changes to the blue-slip policy.

During the st Congress, Chairman Biden issued a public statement of the committee's blue-slip policy. Shortly after the inauguration of George H.