May 24, 2017

Setting the record straight on judicial nominees and blue slip

Memo

Date: May 24, 2017
To: Reporters, Editors, and Columnists 
From: Senator Feinstein, Senate Judiciary Committee Ranking Member
Subject: Setting the record straight on judicial nominees and blue slip

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Some Senate Republicans have recently suggested that the so-called “blue slip” for judicial nominees is less important for circuit court nominations than district court nominations. (The blue slip is a process where both senators must sign off on judicial nominations in their own state.)

In fact, no Obama administration district or circuit court nominee received a Judiciary Committee hearing unless both home-state senators approved of the nominee by returning their blue slips.

The Senate is set to vote on the nomination of Judge Amul Thapar to fill a nearly 1,400-day vacancy on the Sixth Circuit Court of Appeals. Judge Thapar’s nomination by President Trump was only possible because the blue slip was always honored for circuit court nominees during the Obama administration.

President Obama last year nominated Kentucky Supreme Court Justice Lisabeth Tabor Hughes to this Sixth Circuit vacancy. She received a unanimous well-qualified rating from the American Bar Association. However, Judge Tabor Hughes never received a hearing in the Judiciary Committee because both Kentucky senators did not return their blue slips.

Democrats did not abandon the blue slip

Senate Democrats did not abandon the blue slip during the Obama administration even though the Senate Judiciary Committee was controlled by Democrats for six of the eight years.

For example, Judiciary Committee Democrats did not advance Obama nominees in any of the following situations:

  • Only one home-state senator returned the blue slip.
  • Senators initially returned blue slips but later rescinded them.
  • Judicial vacancies were left open for years.
  • Senators recommended a nominee to the White House for a district court vacancy, but refused to return a blue slip for that same nominee when nominated to a circuit court vacancy.

The blue slip serves an important purpose by incentivizing meaningful consultation and cooperation between the White House and Senate on judicial nominees.

Eliminating the blue slip is essentially a move to end cooperation between the executive and legislative branch on judicial nominees, allowing nominees to be hand-picked by right-wing groups.

The blue slip is a time-honored Senate process

In prior administrations, the blue slip was honored for both district and circuit court nominees. During the administrations of President George W. Bush and Bill Clinton, no circuit court or district court nominees were confirmed without blue slips from both home-state senators.

Senator Orrin Hatch (R-Utah), former chairman of the Judiciary Committee, wrote in a 2014 op-ed, “I continued this blue slip tradition. Not a single district court nominee received a committee hearing, and not one appeals court nominee was confirmed without the support of their home-state senators…”

As Senator Hatch’s statement indicates, hearings were not held for the overwhelming majority of judicial nominees—including virtually all circuit court judges confirmed in the last several decades—unless both home-state senators returned blue slips.

The bottom line is that no circuit court nominee has been confirmed in the last several administrations without blue slips from both home-state senators.

Blue slip applies to Obama circuit court nominees:

Kentucky: Sixth Circuit (Judge Amul Thapar)

  • A vacancy has been open on the Sixth Circuit in Kentucky since August 2013.
  • In March 2016, after the vacancy had been open for almost 1,000 days, President Obama nominated Kentucky Supreme Court Justice Lisabeth Tabor Hughes to the vacancy. Justice Hughes received a unanimous well-qualified rating from the American Bar Association and is a highly-regarded judge.
  • Senators Mitch McConnell and Rand Paul did not return their blue slips and Justice Hughes never received a hearing in the Senate Judiciary Committee.
  • U.S. District Court Judge Amul Thapar was nominated by President Trump on March 21, 21017. Senator McConnell returned his blue slip just eight days later.

Alabama: Eleventh Circuit

  • In February 2016, President Obama nominated Judge Abdul Kallon from the Northern District of Alabama to fill an open seat on the Eleventh Circuit.
  • Judge Kallon received blue slips from Senators Richard Shelby and Jeff Sessions in 2009 when he was nominated by President Obama to the district court and had been unanimously confirmed. Judge Kallon also received a unanimous well-qualified rating from the American Bar Association when he was nominated to the Eleventh Circuit. He would have been the first African-American judge to sit on the Eleventh Circuit from Alabama.
  • Senators Sessions and Shelby did not return their blue slips and Judge Kallon never received a hearing in the Senate Judiciary Committee.
  • Because the blue slip was honored for circuit court nominees during President Obama’s administration, President Trump was able to nominate Kevin Newsom to this seat on May 9, 2017. Senators Shelby and Luther Strange promptly returned blue slips and Newsom may receive a hearing as early as June.

Kansas: Tenth Circuit

  • Former Kansas Attorney General Steve Six was nominated by President Obama to a vacancy on the Tenth Circuit on March 9, 2011. Mr. Six received a unanimous well-qualified rating from the American Bar Association and was supported by a bipartisan group of 29 state attorneys general.
  • Senators Jerry Moran and Pat Roberts initially returned blue slips on the nomination, and the Judiciary Committee held a hearing on the nomination in May 2011. After the hearing, Senators Moran and Roberts asked Chairman Leahy not to proceed with the nomination, essentially rescinding their blue slips.
  • Out of deference to home-state senators, the committee never voted on Mr. Six’s nomination, even though the home-state senators initially returned blue slips on the nomination.

Pennsylvania: Third Circuit

  • A vacancy has been open on the Third Circuit in Pennsylvania since July 2015.
  • The Obama Administration worked to reach agreement on a nominee with Senators Pat Toomey and Bob Casey but could only reach agreement with Senator Casey.
  • In March 2016, President Obama nominated Rebecca Ross Haywood, chief of appeals for the U.S. attorney’s office for the Western District of Pennsylvania, to the vacancy.
  • Ms. Haywood received a unanimous well-qualified rating from the American Bar Association and would have been the first African-American woman to sit on the Third Circuit.
  • Ms. Haywood received a blue slip from Senator Casey but not Senator Toomey. She did not receive a hearing in the Senate Judiciary Committee.