by Senator Chuck Grassley
I was surprised to learn from a recent Washington Examiner article
that last week I
“ignored” the Senate’s longstanding blue slip courtesy. This article echoes
inaccurate Democratic talking points and ignores the history of the blue-slip
I have stated consistently that I am maintaining the
blue-slip courtesy as chairman of the Senate Judiciary Committee. Since 1917,
whenever a president has selected a judicial nominee to fill a court vacancy,
the chairman of the Senate Judiciary Committee has issued blue slips of paper
to each senator representing the state where the vacancy occurred. The
historical purpose of the blue slip has been to gather insights about judicial
nominees from home-state senators and encourage the White House to consult with
them before choosing a nominee.
The blue slip was not intended to give a single senator
the power to veto the president’s nominees for political or ideological
reasons. But in 1956, Sen. James Eastland, D-Miss., became chairman of the
Judiciary Committee and decided to change tradition. He imposed a strict policy
requiring both home-state senators to return positive blue slips before he
would schedule a hearing for a nominee. Some scholars have maintained
that Eastland, an unapologetic
segregationist, adopted this policy to prevent judges sympathetic to school
desegregation from sitting on the federal bench in the South.
Sen. Ted Kennedy, D-Mass., succeeded Eastland as chairman
in 1979 and reverted to the original blue slip policy. Under Kennedy, a
negative or unreturned blue slip would not necessarily prevent the nominee from
receiving a hearing before the committee. Sens. Strom Thurmond, R-S.C., Joe
Biden, D-Del., and Orrin Hatch, R-Utah, continued this case-by-case approach as
chairmen as well. Biden noted that nominees would receive hearings even without
two positive blue slips, so long as the White House engaged in pre-nomination
consultation with home-state senators.
It was not until 2001, when Sen. Pat Leahy, D-Vt., became
chairman, that Eastland’s strict blue-slip policy was resurrected. This change
allowed Democrats to block a lot of former President George W. Bush’s judicial
nominees. But it was out of step with the blue slip’s history. Eastland and
Leahy are the only two of my 18 predecessors to adopt such a policy.
My policy, which is based on the policies of the vast
majority of my predecessors, is that the lack of two positive blue slips will
not necessarily preclude a circuit-court nominee from receiving a hearing
unless the White House failed to consult with home-state senators. I am
unlikely, however, to hold hearings for district court nominees without two
positive blue slips.
This brings us to the subject of the article: my decision
to hold a hearing and vote for Michael Brennan, one of President Trump’s nominees
to the U.S. Court of Appeals for the Seventh Circuit. In August of last year,
the president nominated Brennan to a Wisconsin-based seat after months of
consultation with Republican Sen. Ron Johnson and Democratic Sen. Tammy
Baldwin. Johnson promptly returned his blue slip. Baldwin did not, despite the
White House’s consideration of two of her preferred nominees. Consistent with
my policy and the blue slip tradition, I held a hearing for Brennan, a highly
qualified nominee with bipartisan support in legal circles in his home state.
The committee subsequently voted to send Brennan to the Senate floor, where he
will receive a confirmation vote.
This controversy over the blue slip is the result of the
Democrats’ own actions in 2013. That year, they changed Senate rules to end the
60-vote threshold required for lower court nominees. The Democrats justified
their decision by arguing that 41 senators should not be allowed to block
nominees with majority support. Now in the minority, those same senators have changed
their tune. They now argue that one senator should singlehandedly be able to
stall the process before the nominees are even considered in the
I will not allow the blue-slip courtesy to be abused in
this way. The blue slip is meant to encourage pre-nomination consultation, not
vest a senator with the power to block a nominee for political or ideological
reasons. Whether a nominee is suitable for the federal appellate bench is a
decision for the entire Senate.
My decision to hold a hearing and vote for Brennan is not
an example of “ignoring” the blue-slip tradition. It is, in fact, consistent
with the blue-slip policies of the vast majority of my predecessors. My
decision upholds the long tradition that blue slips are not ideological weapons
for obstructing qualified nominees from receiving hearings.