The History of the Blue Slip in the Senate Committee on the Judiciary, 1917-Present
Released: 2003-10-22T00:00:00

Introduction

The Judiciary Committee's blue-slip policy has been a central component in its confirmationof judicial nominations. For a large portion of its history, the blue slip gave Senators the ability todetermine the fate of their home-state judicial nominations. If a home-state Senator had no objectionto a nominee, a blue slip would be returned to the chairman with a positive response. If, however,the Senator had some objection to the nominee and wanted to prevent confirmation, he/she coulddecide not to return the blue slip or return it with a negative response. Over the years, the blue-slippolicy has been modified to prevent a single Senator from having such absolute power over the fateof home-state judicial nominees. Today, a blue slip can stop a judicial nomination only if bothhome-state Senators return a negative blue slip and then only if the President has failed to consultwith the home-state Senators.

This report provides a history of the Judiciary Committee blue-slip custom, a practice whichemanated from the chamber's tradition of senatorial courtesy. It first defines "senatorial courtesy"and how the practice is related to the Judiciary Committee's use of the blue slip. Next, this reportdescribes the creation of the blue-slip procedure and the modifications to it. Eight sections profilethe committee's blue-slip policies during the last 43 Congresses. These profiles provide a sense ofthe stated and practiced blue-slip policy at any given time and place that policy in the context of thehistory of the blue-slip system. Case studies are provided to show how a particular Congress appliedthe blue-slip policy to a given circumstance. Finally, a frequently asked questions section and aconcluding analysis on the blue-slip process are included.

It should be noted that there are currently two kinds of blue slips used by Congress. TheSenate version of the blue slip (1) is a committee practice employed solely by the Senate JudiciaryCommittee for use in the confirmation of federal judges and other positions. In the House ofRepresentatives, the blue slip is an enforcement tool for the Origination Clause of the U.S.Constitution. (2) CRS Report RS21236 , Blue-Slipping: The Origination Clause in the House of Representatives , by JamesV. Saturno, discusses the use of the House version of the blue slip. (3)

Senatorial Courtesy

The blue slip is a manifestation of senatorial courtesy. A layman's definition of senatorialcourtesy would be the deference with which one Senator treats another. In the context of theconstitutional responsibility of advice and consent, the term and practice are more expansive. The American Congressional Dictionary defines senatorial courtesy as

[t]he Senate's practice of declining to confirm apresidential nominee for an office in the state of a senator of the president's party unless that senatorapproves. Sometimes called "the courtesy of the Senate," the practice is a customary one and notalways adhered to. A senator sometimes invokes the custom by declaring that the nominee ispersonally obnoxious or personally objectionable to him.

... [The Senate] also usually complies with a senator'srequest for a temporary delay in considering a nomination, a request that is referred to as a hold. (4)

The concept of senatorial courtesy goes beyond the confines of the Senate and, at times,represents the courtesy a President extends, or arguably should extend, to Senators. Politicalscientist Harold Chase describes the political ramifications of this Senate tradition:

Senators, whether chosen by state legislatures, as theywere at an earlier time, or by the voters of the state, must continuously nurture their political supportback home; that is, if they hope for additional terms in office -- and it is a rare senator who does not. In this connection, senators from the First Congress on have recognized that one or two senatorshave a much greater stake in a particular appointment than others. It is, of course, exceedinglyhelpful to a senator to be able to reward supporters with good posts in the federal government. Conversely, it is enormously damaging to a senator's prestige if a president of his own party ignoreshim when it comes to making an appointment from or to the senator's own state. What is even moredamaging to a senator's prestige and political power is for the president to appoint to high federaloffice someone who is known back home as a political opponent to the senator. It was easy forsenators to see that if they joined together against the president to protect their individual interestsin appointments, they could to a large degree assure that the president could only make suchappointments as would be palatable to them as individuals. Out of such considerations grew thecustom of senatorial courtesy. (5)

Although the custom of using the "personally obnoxious" or personally objectionable"declaration has fallen out of use in recent years, various chairmen of the Senate Judiciary Committeehave used the blue-slip practice as a means of providing Senators with the opportunity to makeobjections to nominations formally known within the committee.

Methodology in Preparing the History of the Blue Slip

The following account of the history of the blue slip reflects research in the NationalArchives and Records Administration (NARA) in Washington, D.C. (6) The primary recordsresearched were the executive nominations files from the 56th through the 83rd Congresses(1899-1953) and the correspondence and communications files of the Senate Judiciary Committeeduring the same Congresses. (7)

Scholarly studies as well as newspaper accounts of the origination of the blue-slip processwere also used. Most accounts placed the creation of blue slips as having occurred during theEisenhower Administration: the 83rd through the 87th Congresses (1953-1961). (8) Therefore, the research beganin that time period and then worked back through the Congresses until no blue slips were found.

Collection of archival records and data focused on locating blue slips for each Congress andany personal correspondence between or among Senators relating to their use. The correspondencefiles contained no information on blue slips. Blue slips were, however, found for every Congressstarting with the 65th (1917-1918) through the 83rd (1953-1954). Although there were no blue slipsfor the 64th Congress (1915-1916), research was conducted as far back as the 56th Congress(1899-1900). During this 15-year time period, no mention or evidence of blue slips was discovered. The information collected permits a more accurate history of the blue slip in the JudiciaryCommittee, correcting the widespread belief that the blue-slip process originated in the 1950s.

Origin of the Blue Slip Process

Although not mentioned in the Judiciary Committee rules, blue slips are an informal practiceunique to the committee, which has historically used blue slips on all U.S. attorney, U.S. marshal,U.S. district court and U.S. court of appeals nominations. Blue slips have been employed to blocknominations in one of two ways, depending on the preferences of the Judiciary chairman. Judicialnominations have been blocked by a Senator either returning a negative blue slip or failing to returna blue slip altogether. Over the years, there have been various modifications to these basic practices.

In the case of U.S. district court nominations, (9) once a nomination is referred to the Judiciary Committee, thecounsel for the committee will send a blue slip (so called because of its color) to each Senator of thenominee's home state, regardless of party affiliation. The Senator may then return the blue slip tothe Judiciary Committee with comments on the particular nominee in question. In most cases, theblue 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.S. circuit court nominations, the process is similar. The Judiciary Committee will giveblue slips only to the Senators of the retiring judge's home state. This tradition comes from thepractice of reserving circuit court positions for each state to ensure proportional or equal staterepresentation for each circuit. (10) The President is often effectively required by this tradition toselect a circuit court nominee from the state of the retiring judge.

If a negative blue slip is received, the chairman may take the following actions on thenominee: (1) stop all committee proceedings; (2) move forward but give added weight to theunfavorable review; or (3) proceed without notice of the negative review. Since the late 1970s, thecommittee 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 notknown. The committee has not made the blue slip part of its official rules for more than 30years, (11) and this is stillthe case in the 108th Congress. (12) From research conducted at the National Archives, evidencesuggests that the blue-slip procedure began sometime in the mid- to late 1910s under thechairmanship of Senator Charles A. Culberson of Texas. (13)

This impression is based on the appearance of the first known blue slip in the 65th Congress(1917-1918). At the time, Senator Culberson was chairman of the Judiciary Committee, a capacityhe served in from the 63rd through the 66th Congresses (1913-1919). The documentary evidence ofthis time period suggests that Senator Culberson may have created the blue slip. From the 65thCongress onward almost every judicial nominee's file includes a blue slip. Prior to this time(56th-64th Congresses), the files of judicial nominees reveal no evidence of blue slips.

Judiciary Committee materials at the National Archives do not provide a specific explanationfor 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 wasperiodic tension between the two branches, and this condition may have been a factor in the blueslip's creation. (14)

Of particular interest is the creation of blue slips at the same time as the adoption of SenateRule XXII in 1917, which permits Senators to end a filibuster by invoking cloture. (15) Despite this apparentcoincidence, a direct link between the creation of the blue slip and the cloture rule can be dispelled,because Senate Rule XXII did not apply to judicial nominations until 1949. In that year, S.Res.15 modified Senate Rule XXII from, "to bring to a close the debate upon any pendingmeasure is presented to the Senate ..." to the following: "to bring to a close the debate upon anymeasure, motion, or other matter pending before the Senate." (16) Therefore, the JudiciaryCommittee did not need to create a blue-slip policy as a result of the 1917 Senate rule becausecloture at that time did not apply to filibusters on judicial nominations.

Structure of the Blue Slip (1917-2003)

The basic structure of the blue slip has not changed substantially in the 86 years since itscreation. For the first 27 years (1917-1944), the blue slip was actually handed to senators as a foldedblue "slip" of paper. The blue slip form, printed on Judiciary Committee letterhead, would containthe 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 informationconcerning the nomination of ..." It was signed by the committee chairman. At the bottom of thepage, 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 1922, Chairman Knute Nelson(R) of Minnesota placed below the introductory text the following statement: "Under a rule of theCommittee, unless a reply is received from you within a week from this date, it will be assumed thatyou have no objection to this nomination." (17) Before this time, the Judiciary Committee did not have a statedtime limit for a senator to return a blue slip.

After that change, the next major modification to the blue-slip policy came during thechairmanship 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 withina week from this date, it will be assumed that you have no objection to this nomination." ChairmanThurmond also added at the bottom of the blue slip, before the comments section, two boxes forchecking, one titled, "I approve" and the other, "I oppose."

In 1998, Chairman Orrin G. Hatch replaced the traditional, "Unless a reply is received fromyou 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 inDirksen G-66. No further proceedings on this nominee will be scheduled until both slips have beenreturned by the nominee's home state senators." (18)

Shortly after the 2000 elections, when Senator Patrick Leahy held the chairmanship of theJudiciary Committee, (19) the blue slip again was modified. Instead of reinstating the Thurmond blue slip statement of, "Unlessa reply is received from you within a week from this date, it will be assumed that you have noobjection to this nomination," Chairman Leahy inserted the following statement, "Please return thisform as soon as possible to the Committee office in Dirksen 147." The "No further proceedings ..."statement, instituted under Chairman Hatch, was dropped as well.

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 thestatement of "Please give me your opinion concerning the following nomination now pending beforethe Senate Judiciary Committee." Before Leahy's modification, the text of the initial introductionhad never been changed.

The current blue slip form has retained Senator Leahy's phrasing and form except roomnumber designation changes.

First Example of a Senator Using the Blue Slip

The first example found of a Senator using a blue slip to oppose a judicial nomination wasin the spring of 1917 (65th Congress). President Woodrow Wilson had recently nominated U. V.Whipple to the Southern District of Georgia; Senator Thomas W. Hardwick returned a negative blueslip on April 9, 1917. 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 confirmationof the nominee." (20) Atthat time, a blue slip did not necessarily prevent committee action on a nomination. As such,Whipple's nomination was reported, albeit adversely, to the Senate, where he was rejected withouta recorded vote on April 23, 1917. (21)

The Blue-Slip Policy: 65th-108th Congresses

The record on the Judiciary Committee's formal written rule on blue slips is unclear. Evenif complete records were kept on blue slips, a chairman's policy may have been different in practicethan 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 JudiciaryCommittee policies on the blue slip for each of the last 48 Congresses (1917-2003). Each sectionwill highlight the chairman's stated blue-slip policy and show, when necessary, instances where thepolicy differed, in practice from the stated blue-slip policy.

In addition, the table at the end of this report provides information on the Senate JudiciaryCommittee's blue slip policy for each of the last 21 Congresses, dating back to 1956. The tablebegins in 1956 because it was then that the Judiciary Committee began to permit Senators to use theblue slip as a way to block judicial nominations. The table is arranged chronologically by the datein which a change occurred in the blue-slip policy of the Senate Judiciary Committee. Working fromleft to right, column one consists of the name of the Judiciary Committee chairman. Columns twoand three list the years and Congresses that a particular blue-slip policy was in use. Finally, columnfour describes the Judiciary Committee's blue-slip policy for those years and Congresses.

65th-84th Congresses

Chairman Culberson's written blue-slip policy was to merely ask the opinion of thehome-state Senators on a particular judicial nomination. A specified rule limiting the amount of timeto return a blue slip did not become part of the Judiciary Committee's stated policy until 1922 whenChairman Knute Nelson placed it on the blue-slip form in the 67th Congress. No reason was givenfor that modification, nor does the historical record point to any event that would have given causefor this change.

From the 65th through the 84th Congresses, no chair of the Judiciary Committee allowed anynegative blue slips to automatically veto a nomination. For example, despite the blue-slipping ofU. V. Whipple by Senator Hardwick of Georgia, the chairman still moved ahead with a hearing andeven a committee vote. A blue slip apparently did not give a Senator an absolute right to block ajudicial nomination and prevent committee action.

This norm can be seen in the statements made by individual Senators who asked if they couldappear before the Judiciary Committee to express their objections to the particular nominee that theywere blue-slipping. For example, in 1936 Senator Theodore G. Bilbo returned a negative blue slipon Edwin R. Holmes, who had been nominated to be U.S. Circuit Court judge for the fifth circuit. On his blue slip, Senator Bilbo stated, "I positively object to Holmes." (22) Although Senator Bilbostated his objection to the nominee, he did not call for the committee to stop all proceedings on thenomination, but instead stated that he would "be pleased to make known my objection to [this]sub-committee when [a] hearing is ordered." (23)

Fourteen years later (1950), Senator Bourke B. Hickenlooper, after noting on his blue slipthat he "vigorously object[ed]" to the nomination of Carroll O. Switzer to be U.S. District Courtjudge for the southern district of Iowa, wrote, "I shall be glad to appear before your committee onthis matter." (24) Likewise in the same year, Senator Richard Russell asked the Judiciary Committee Chairman PatrickMcCarran if he could "appear before the Committee and present some of the circumstances relatingto this nomination before the Committee reports it to the Senate, as I am opposed to hisconfirmation." (25) Ineach case, the objecting Senator asked to appear before the Judiciary Committee to state his caseagainst the individual being nominated.

What these examples appear to show is that the Judiciary Committee policy during this timewas that a negative blue slip was not intended to prevent committee action. Instead, a Senator'snegative assessment of a nominee was meant to express to the committee his views on the nomineeso that the chairman would be better prepared to deal with the review of the nomination. The endresult was that Judiciary Committee chairmen did not traditionally view a negative blue slip as a signto stop all action on judicial nominations. This is important to note because of the modification tothis policy norm during the 84th Congress.

84th-95th Congresses

From 1956 through 1978, Senator James O. Eastland chaired the Judiciary Committee andbrought about the first fundamental change to the way the committee used blue slips. During histenure, it appears that blue slips were handled as absolute vetoes by Senators. (26) The policy was that if aSenator either returned a negative blue slip or failed to return one at all, the committee would stopall action on a nominee. (27)

Evidence for this policy is suggested by the fact that no judicial nomination on which therewas a negative blue slip was rejected by the committee and then subsequently reported to the Senateduring this time period. (28) In previous Congresses, the Judiciary Committee would reportmost nominations with a negative blue slip to the Senate with adverse recommendations. With thedecrease in observance of the "personally obnoxious" standard, however, a Senate rejection was nolonger certain. Therefore, the committee changed its traditional blue-slip policy and proceeded tostop all action on a judicial nomination when a home-state Senator returned a negative blue slip orfailed to return one. (29)

96th Congress

Senator Edward M. Kennedy chaired the Judiciary Committee during the 96th Congress. Although he led the committee for only one Congress (1979-1981), he ushered in a number ofsignificant changes to the way judicial nominations were handled. (30) In relation to thecommittee's blue-slip policy, Chairman Kennedy informed his colleagues that when a Senator failedto return a blue slip, he would let the full committee vote on whether to proceed. (31) In a 1979 JudiciaryCommittee hearing, Chairman Kennedy stated that he had

instructed the committee staff to send to both Senatorsfrom a nominee's State a blue slip requesting the Senator's opinion and information concerning thenominee. If the blue slip is not returned within a reasonable time, rather than letting the nominationdie I will place before the committee a motion to determine whether it wishes to proceed to a hearingon the nomination notwithstanding the absence of the blue slip. The committee, and ultimately theSenate, can work its will. (32)

Besides Chairman Kennedy's modification to the stated blue-slip policy, there appeared tohave been another change as well. A home-state Senator's objection to a nominee, in practice, didnot have the same power to automatically stop committee action as before. This unstated change canbe seen in the confirmation proceedings over a Virginia judgeship during the 96th Congress. Againstthe wishes of Virginia Senator Harry F. Byrd Jr., President Jimmy Carter nominated James E.Sheffield to the U.S. District Court for eastern Virginia. In committee, the nomination was opposedby Senator Byrd, who sent a negative blue slip to Chairman Kennedy. Senator Byrd reportedly didnot object to holding a hearing for Sheffield. (33) On August 26, 1980, the Judiciary Committee held a hearing onSheffield despite the blue slip objection. This marked the first reported instance since 1951 in whichthe Judiciary Committee moved forward on a blue-slipped nomination. (34) The committee took nofurther action and the Senate eventually returned the Sheffield nomination on December 16, 1980.

Chairman Kennedy established the first post-Eastland changes to the blue-slip system. Thestated modification placed the decision to move forward on a nomination that had not received ahome-state Senator's blue slip with the committee. The de facto alteration permitted the chairmanto use his discretion to determine if the committee would act on a blue-slipped nominee. ChairmanKennedy said that his purpose in modifying the blue-slip policy was to allow "the Federal courts [to]... become more representative of the people of this Nation." (35) He added, "we face thequestion of what to do about the longstanding practice of the one-member veto -- or the blue-slipprocess.... I will not unilaterally table a nomination.... I cannot, however, discard cavalierly thetradition of senatorial courtesy, exception-riddled and outdated as it may be." (36)

97th-99th Congresses

Although it was reported that Senator Strom Thurmond was going to change the blue-slippolicy in use under Senator Eastland, (37) at a January 19, 1981 Judiciary Committee organization meeting,Chairman Thurmond stated that he "would follow the same procedure ... [enacted] under SenatorKennedy." This meant that, "if [the committee] do[es] not hear of a Senator objecting, if he just doesnot send in his blue slip and if we do not hear within the seven days, we assume, as Senator Kennedydid, there is no objection." Chairman Thurmond did make a point of stating "that if either Senatorobjects to a nomination we should not go forward with it." (38)

Therefore, under Chairman Thurmond's blue-slip policy, a home-state Senator could stop allcommittee action on a judicial nominee by returning a negative blue slip; however, the committeewould not stop action on a nominee if the home-state Senator failed to return it. As such, ChairmanThurmond was following Senator Kennedy's modification to the blue-slip policy but also stating thata single home-state Senator still had the power to stop committee action on a nominee. Like that ofhis predecessor, however, Chairman Thurmond's blue-slip policy was not always consistent, asshown by President Reagan's District Court nominations in 1983 and 1985.

In 1983, reportedly at the suggestion of retiring Senator Samuel Hayakawa of California,President Reagan selected John P. Vukasin Jr., to be U.S. District judge for northern California. (39) However, Vukasin wasopposed by Senator Alan Cranston of California, who returned a negative blue slip to thecommittee. (40) DespiteSenator Cranston's objection, Chairman Thurmond went ahead with Vukasin's nomination, and onJuly 21, 1983 the nomination was reported favorably on a party line vote. This vote marked the firsttime since 1951 that the Judiciary Committee voted to report out a nomination despite the blue slipobjection of a home-state Senator. (41) Once through committee, the Senate eventually confirmedVukasin by voice vote. (42)

Two years later, in 1985, President Reagan selected Albert I. Moon Jr. to be a U.S. Districtjudge for Hawaii. In this case, both Hawaii Senators, Daniel Inouye and Spark Matsunaga, opposedthe nomination and sent back negative blue slips to the committee. (43) Although tradition dictatedthat negative blue slips from both home-state Senators would prevent committee action, ChairmanThurmond decided to move forward. On November 22, 1985, the committee held a hearing on theMoon nomination. This marked the first reported instance in which the Judiciary Committee actedon a nomination despite the presence of two negative blue slips. After the hearing, the committeetook no further action and the Senate eventually returned the Moon nomination on December 20,1985.

Like Senator Kennedy in the 96th Congress, Chairman Thurmond did not allow the failureof a home-state Senator to return a blue slip to stop committee action. Furthermore, the presenceof one or even two negative blue slips was no longer enough to prevent committee action. The endresult was that Chairman Thurmond substantially changed how the blue-slip policy operated. Yetit should be noted that the Moon nomination was the only known example during this time periodof a chairman moving forward on a nomination despite the presence of two negative blue slips. Thisis important because, since the blue slip is not a committee rule, the chairman has the discretion tochange the policy when deemed necessary. Therefore, as the Vukasin and Moon cases show, thestated and practiced blue-slip policies can at times be confusing if not contradictory to one another.

100th-103rd Congresses

Under the chairmanship of Joseph R. Biden, Jr., the Judiciary Committee continued to followthe blue-slip modifications put in place by Senators Kennedy and Thurmond. However, ChairmanBiden also made changes to the blue-slip policy. During the 101st Congress, Chairman Biden issueda public statement of the committee's blue-slip policy. Shortly after the inauguration of George H.W. Bush in 1989, Chairman Biden sent a letter to the President stating the committee's blue-slippolicy:

The return of a negative blue slip will be a significantfactor to be weighed by the committee in its evaluation of a judicial nominee, but it will not precludeconsideration of that nominee unless the Administration has not consulted with both home stateSenators prior to submitting the nomination to the Senate. (44)

Chairman Biden's letter represented the first formal, written statement by a JudiciaryCommittee chairman regarding the blue-slip procedure. In that letter, Chairman Biden expressed,in what had only been practiced and not stated by a chairman before, that the committee would nolonger treat a negative blue slip as an absolute means of stopping committee action. Presidentialconsultation with both home-state Senators might be enough to move the nomination throughcommittee even with the presence of a negative blue slip. This was a important event in terms ofoutlining a clear picture of the standards to be used in the blue-slip process. In particular, ChairmanBiden's letter underscored that prior consultation would be a primary factor in evaluating a negativeblue slip.

The 1989 nomination of Vaughn R. Walker to be a U.S. District judge for northern Californiamarked the first time that Senator Biden's policy was put to the test. Walker was originallyrecommended to the President by Senator Pete Wilson of California. California's senior SenatorAlan Cranston opposed the nominee. In committee, Senator Cranston returned a negative blue slipto Chairman Biden, who stated that Cranston's opposition would "affect Walker negatively." (45) However, ChairmanBiden's statement evidently meant that only a delay in the committee's proceedings would occur andnot an outright blocking of the nomination. After a committee investigation, Chairman Biden movedahead with the nomination and eventually Walker was reported out of the committee by a 11 to 2vote. (46) Soon afterward,Walker was confirmed by voice vote on November 22, 1989.

Chairman Biden made public the standards that the Judiciary Committee would use inconsidering negative blue slips. The committee had previously worked under the policy that anegative blue slip would not necessarily prevent committee action, however, the previous twochairmen had never publicly stated that modification to the blue-slip policy. Moreover, Presidentstended to consult with home-state Senators before this time but by making the requirements publicChairman Biden placed the pre-nomination selection process in the forefront of the confirmationprocess. Therefore, the letter, in stating this expectation, helped to address the question of the blueslip's place in the appointment process.

104th Congress to June 5, 2001, of the 107th Congress

After the Republican Party gained control of the Senate in the 1994 elections, JudiciaryChairman Orrin G. Hatch continued Senator Biden's practice of stating publicly the panel's blue-slippolicy. At the start of his chairmanship, Hatch sent a letter to President William J. Clinton's counsel,Abner J. Mikva, stating how the blue-slip system would be observed. In the letter, Chairman Hatchsaid that he would follow the "policy as articulated and practiced by Senator Biden in 1989," (47) which was to "not precludeconsideration" of a nominee "unless the Administration has not consulted with both home stateSenators."

Two years later, in a 1997 press release, Chairman Hatch articulated a more detailed accountof his blue-slip policy. This message was a response to his colleagues' frustrations over not receiving"the level of consultation that they have expected." Chairman Hatch began by quoting MajorityLeader George Mitchell (D) on the requirements of executive and legislative consultations onnominations:

[O]ne way to avoid such confrontations [between theSenate and the White House] in the future is for the President to engage in meaningful consultationwith the Senate before making significant nominations .... Countless historical examples justifyconsultations; the public supports it; and common sense counsels it ... In an era of dividedgovernment, the choice the two branches face with respect to nominations is the choice we face withrespect to all other matters: cooperation or confrontation .... We are confident that meaningfulconsultation can occur without reducing the role prerogatives of either branch of government, andin a way which more fully informs the President of other points of view prior to rather than after anomination is made. (48)

Chairman Hatch went on to state that he had "sent a letter to the White House counsel ...which clearly explains this policy." (49) In that letter, he laid out five circumstances that would promptthe Judiciary Committee to delay or hold up a nomination:

(1) failure to give serious consideration to individualsproposed by home state Senators as possible nominees;

(2) failure to identify to home state Senators and theJudiciary Committee an individual the President is considering nominating with enough time toallow the Senator to provide meaningful feedback before any formal clearance (i.e., by the ABA orFBI) on the prospective nominee is initiated;

(3) after having identified the name of an individual thePresident is considering nominating, failure to (a) seek a home state Senator's feedback, includingany objections the Senator may have to the prospective nominee, at least two weeks before anyformal clearances are initiated, and (b) give that feedback seriousconsideration;

(4) failure to notify a home state Senator, and theJudiciary Committee, that formal clearance on a prospective nominee is being initiated despite theSenator's objections; and

(5) failure to notify home state Senators, and theJudiciary Committee, before a nomination is actually made, that the President will nominate anindividual. (50)

A little over three months after the start of President George W. Bush's administration,several reports surfaced that Chairman Hatch was planning to modify his blue-slip policy. (51) News reports were basedon two Judiciary Committee meetings. The first, held on April 5, 2001, was a confirmation hearingon the nominations of Larry D. Thompson to be Deputy Attorney General and Theodore B. Olsonto be Solicitor General of the United States. After the question and answer period, in response toa question concerning the selection process by Senator Charles E. Schumer, Chairman Hatch statedwhat his blue-slip policy would be under President Bush. (52)

Chairman Hatch began by stating that he would institute the same policy that "I had askedthe Clinton Administration to follow," (53) which was based on the 1989 Biden letter to President Bush andhis own 1995 letter to White House Counsel Abner Mikva. Chairman Hatch went on to describe andquote these letters in detail:

Senator Biden's letter explained the return of a negativeblue slip ordinarily does not preclude consideration of a judicial nominee, but is given substantialweight by the Committee in its evaluation of the nominee. Senator Biden also emphasized theimportance of pre-nomination consultation by the administration, with home state Senators, stressinghis belief, that, quote, "The nomination process will function more effectively if consultation is takenseriously," unquote. Thus, as Senator Biden also wrote, quote, "If such good-faith consultation hasnot taken place, the Judiciary Committee will treat the return of a negative blue slip by a home stateSenator as dispositive and the nominee will not be considered," unquote. (54)

Chairman Hatch stressed the pre-nomination consultation component of the blue slips and went onto note, "the Senate expects genuine good faith consultation by the administration with home stateSenators before a judicial nomination is made, and the administration's failure to consult in genuinegood faith with both home state Senators itself is grounds for a Senator's return of a negative blueslip." Thus, "[w]here the administration has failed to provide good faith pre-nominationconsultation, a negative blue slip is treated as dispositive and precludes Committee considerationof a judicial nominee." (55) Chairman Hatch warned that "if any of our colleagues here wantto veto the President's constitutional prerogative to make his appointments with the advice andconsent of the Senate, that is a different matter, and one which I think diverges from the policy ofthis Committee since as far back as I can remember, and that is 25 years, since Senator Kennedy wasChairman of this committee." (56)

Senator Richard J. Durbin questioned the policy laid out by Chairman Hatch. Senator Durbinbegan by stating that "[t]he practice that has been followed in the 4 years that I have been in theSenate is different than what you have just described. In that time, one Senator could stop a nomineefrom a state." Moreover, he added, that "there have also been times when members of the SenateJudiciary Committee, not even from the same state as the nominee, could stop a nomination." (57)

Chairman Hatch responded to Senator Durbin's concerns. The discussion did not, however,settle the questions over the committee's blue-slip policy. The exchange ended with theunderstanding that the blue-slip policy would be discussed by the entire Judiciary Committee laterthat month.

The subsequent meeting, held in executive session on April 24, 2001, reportedly focused onthe concerns Senator Durbin and other Democratic Senators had relating to the JudiciaryCommittee's blue-slip policy. However, neither side was able to come to an agreement on what thecommittee's blue-slip policy had been or what blue-slip policy would be followed in the 107thCongress. Reportedly, during this meeting, Chairman Hatch asserted that "his policy has alwaysbeen that a negative blue slip from a single senator should be given great weight, but should notautomatically block a nomination." (58)

Democratic Senators were reportedly alarmed, stating that it was "an unfair change in [theblue slip] policy." (59) Part of the problem in reaching a compromise was that Democratic Senators claimed that ChairmanHatch had allowed individual Senators to use a blue slip to prevent nominees from being confirmedduring the Clinton Administration. For example, the CQ Daily Monitor reported that "Jesse Helms,R-N.C., used the 'blue slip' to block Clinton's nominees to the bench in his state even when they hadthe approval of Democrat John Edwards." (60)

Chairman Hatch scheduled another committee meeting on May 3, 2001. However, newsreports stated that the Democratic members of the Judiciary Committee "walked out of" the meetingbecause "they [were] being shut out of the judicial nominations process." (61) Both parties held newsconferences shortly after to state their position on the matter of blue slips.

At the Democratic news conference, Senator Leahy said that Chairman Hatch had changedthe blue-slip policy in place during the Clinton Administration. (62) Senator Leahy read an oldversion of Chairman Hatch's blue slip: "No further proceedings on this nominee will be scheduleduntil both blue slips have been returned by the nominee's home-state senators." (63) Senator Leahy went onto assert, "this was the Republican policy when there was a Democratic president. It should be thesame policy with a Republican president." (64)

Chairman Hatch, at the Republican news conference held the same day, answered theDemocratic Senators' assertions by stating, "As I confirmed in two letters to the White House in 1995and 1997, during my tenure as chairman, I continued as a matter of practice and policy to follow thecommittee's blue slip policy of my predecessor, Joe Biden." (65) That policy, ChairmanHatch stated, was a continuation of Senator Kennedy's blue-slip policy, which was "[a] withholdingof a blue slip or a denial of a blue slip or a negative blue slip will have great weight, but it will notbe dispositive." (66) Chairman Hatch continued by stating that the change in blue-slip policy occurred in 1998:

[W]hen we had a conflict between two Republicansenators, and I sent a message to them through the blue slip policy and changed it to the point -- and,by the way, in 1998 we were getting zero -- zero -- consultations with the Clinton White House. Isent them a letter saying this is serious problem, and I made it very clear that we couldn't put up withit. And because of the conflict with the two Republican senators, we changed the policy to theconsent of -- to require the blue slips from both, but mainly because of the lack of consultation...." (67) Chairman Hatch defended the 1998 change in the blue-slip policy by stating, "I agreed to follow thepolicy of Biden up till that point [1998], and I still followed it after that point, except for those wherethere was no consultation, and even then would not allow just one senator to stop a nominee." (68)

(69)

June 6, 2001, to the End of the 107th Congress

On June 6, 2001, Senator Leahy took over as Judiciary chairman. Shortly before the Jeffordsparty switch, Senator Leahy and the other Democratic members of the Judiciary Committee statedin an April 27, 2001 letter to White House Counsel Alberto Gonzales how the Senate should beconsulted by the President in terms of pre-nomination review. This letter, sent to Gonzales over amonth before Senator Leahy became chair of the committee, endorsed the 1997 blue-slip policystatement "made by Chairman Hatch." As the letter notes, "the Administration [should] undertaketo incorporate the following consultative procedures into its selection, vetting and nominatingprocesses":

1. The Administration shall give seriousconsideration to individuals proposed byhome state Senators as possible nominees.

2. The Administration shall consult with homestate Senators and the Judiciary Committee(both majority and minority) regardingindividuals the President is consideringnominating with enough time to allowSenators to consider the potential nominee andprovide a meaningful response to theAdministration before any formal clearance(i.e. by the FBI) on the prospective nominee isinitiated.

3. Should the Administration choose to begin aformal clearance process of a nominee despitea home state Senator's objection, theAdministration shall notify the home stateSenators and the Judiciary Committee that thisis the case before the clearance processstarts.

4. When the President has made the finaldecision to nominate an individual, home stateSenators and the Judiciary Committee shall begiven at least one week's notice before theformal nomination ismade.

5. When a nominee is sent to the Senate,supporting documentation for the nominationshall be simultaneously sent to the Senate inorder to expedite the Senate's evaluation of thenominee.

6. The nominee shall be directed by theAdministration to cooperate fully withSenators who seek information regarding thatnomination. (70)

Although Senator Leahy's statement was a further refinement of Senator Hatch's policyregarding blue slips in terms of consultation, it was reported that Senator Leahy would follow adifferent policy than Senator Hatch's. For example, the CQ Daily Monitor reported that ChairmanLeahy indicated he "probably will return to the practice of moving ahead with a nomination onlywith approving 'blue slips' from both senators representing the nominee's home state." (71) This report was supportedlater on June 6, 2001, when CQ Weekly reported that, in an interview, Chairman Leahy identifiedhis blue-slip policy: "unless he is satisfied that both senators from the home state of a nominee havebeen consulted by the Bush administration, a nomination will not move." (72)

News reports claim that Chairman Leahy not only adhered to the policy stated on June 6,2001, but went further. (73) These reports indicated that Chairman Leahy permitted MichiganDemocratic Senators Carl Levin and Debbie Stabenow to not only block nominations of fellowMichiganders to the Sixth Circuit Court of Appeals, but all nominations to that Circuit. (74) The Legal Times cited anAugust 6, 2001 letter written to Chairman Leahy by Senators Levin and Stabenow asking thechairman to "halt all movement on any nominations to the 6th Circuit." (75) Reportedly, SenatorsLevin and Stabenow "used their blue slips to block confirmation" of two Sixth Circuit nominations,Jeffrey Sutton of Ohio and Deborah Cook of Ohio, during the 107th Congress. (76)

Also during the 107th Congress, Chairman Leahy, along with Ranking Member Hatch, agreedto a fundamental change to the blue-slip system. Under their agreement the blue slips would "betreated as public information." (77) The two Senators stated: "[w]e both believe that such opennessin the confirmation process will benefit the Judiciary Committee and the Senate as a whole." Inorder to confirm continuance of this new reform, both Senators also agreed that "this policy ofopenness with regard to 'blue slips' and the blue slip process will continue in the future, regardlessof who is Chairman or which party is in the majority in the Senate." (78) This agreement wasadhered to, and continues, with blue slips publicly available on the Office of Legal Policywebsite. (79)

108th Congress

With Senator Hatch once again chairing the Judiciary Committee, it was reported that hewould reinstate his previous blue-slip policy where "a single negative blue slip from a nominee'shome state won't be enough to block a confirmation hearing." (80) Chairman Hatch toldreporters, "I'll give great weight to negative blue slips, but you can't have one senator holding up, forinstance, circuit nominees." (81) Thus, the blue-slip policy in the 108th Congress is that only oneof the home-state Senators must return a positive blue slip before the Judiciary Committee will moveforward with a nomination -- provided that the Administration engages in pre-nominationconsultation with both home-state Senators.

The stated policy was followed when, on April 1, 2003, Chairman Hatch granted a hearingfor Carolyn Kuhl of California to be U.S. Circuit Court judge for the Ninth Circuit. (82) The hearing marked thefirst time in the 108th Congress that the Judiciary Committee moved forward with a nominationwithout the support of both home-state Senators: (83) Senator Dianne Feinstein of California had returned a blue slipto the committee. (84) The Kuhl nomination appears to represent a significant change in the blue slip policies betweenChairman Leahy in the 107th Congress and Chairman Hatch in the 108th Congress. During the 107thCongress, Chairman Leahy required both blue slips to be returned, which meant that no action wastaken on Kuhl's nomination. Without the return of California Senator Barbara Boxer's (D) blue slip,Senator Leahy had declined to advance the Kuhl nomination in the 107th Congress. However, in the108th Congress, even without Senator Boxer returning her blue slip, Chairman Hatch held a hearing.

Also in the 108th Congress, shortly before the 2003 August recess, Chairman Hatch held ahearing for Henry Saad of Michigan to be U.S. Circuit Court judge for the Sixth Circuit. ChairmanHatch moved forward with the Saad nomination despite the objection of Michigan Senators CarlLevin and Debbie Stabenow. This marked the first reported instance that a nomination with twonegative blue slips has had any committee action since 1985 and only the second known case incommittee history. Senators Levin and Stabenow had returned negative blue slips on March 19,2003. (85)

Frequently Asked Questions

As this report indicates, there are varying nuances to the Judiciary Committee's blue-slippolicy. During the tenure of different chairmen, a negative blue slip may or may not have permitteda home-state senator from stopping all committee action on a nomination. Even the failure to returna blue slip has called into question the ability of a chairman to move forward on a nomination. Thereis also the question of consultation and the degree to which a President must consult with bothhome-state Senators in the selection of a nomination. Finally, even if one understands the blue-slippolicy and the requirements it places on a President, a particular chairman's own policy may bedifferent in practice than what is stated. The following questions attempt to address some of theseproblems and concerns.

What Is a Blue Slip?

A blue slip is a Senate Judiciary Committee custom, in which the chairman seeks eitherapproval or disapproval from both home-state Senators. In practice, the chairman will send a bluecolored form, which is called a blue slip, to the Senators of the state where the President hasnominated either a U.S. Circuit or District Court nominee. Depending on the chairman's policy atthe time, a return of one or two negative blue slips by the home-state Senators could stop furtheraction on the nominee and thus prevent confirmation.

What Are the Justifications for a Blue-Slip Policy?

The practice of using a blue slip can be seen as a way for Senators to have a role in theselection of an individual who may have some impact on his/her state. Thus, when a Presidentsubmits to the Senate individuals who will either fill a federal position in a Senator's state or willrepresent the state in some capacity, the chairman will give a blue slip to home-state Senators so thatthey may express an opinion on the nomination.

How Many Committees Have a Blue-Slip Policy?

The Senate Committee on the Judiciary is the only committee in either the Senate or theHouse of Representatives that currently employs the blue slip. Yet many committees that have areview function on executive nominations continue to practice, to varying degrees, the custom ofsenatorial courtesy that the blue slip represents.

Who Sets the Blue-Slip Policy?

The blue-slip policy is set by the chairman of the Judiciary Committee at the outset of everyCongress. In recent years, the chairman has sent a letter to the President stating committee policyon blue slips and expectations the committee has of the President with regard to pre-nominationconsultation with home-state Senators. Each chairman also has the ability to make changes to theblue slip policy whenever he or she deems it appropriate.

Why Does the Blue-Slip Policy Change?

Each chairman has the prerogative to set blue-slip policy. It generally changes when thereis a change in the party majority.

What Is the Blue-Slip Policy in the 108th Congress?

The blue-slip policy in the current Congress is that a negative blue slip is given dueconsideration by the chairman but will not prevent future action by the committee unless thePresident has not consulted with both home-state Senators.

What Are the Key Benchmark Dates for Blue Slips?

The following are some of the more important dates of note for blue slips:

1917 -- first appearance of a blue slip

1917 -- first appearance of a negative blue slip

1922 -- time limit placed on the return of blue slips

1956 -- first formal change in blue-slip policy since itscreation

1979 -- second alteration in blue-slip policy

1989 -- first public statement of the blue-slip policy

1998 -- time limit removed on the return of blue slips

2001 -- first time blue slips made public

When Does a Blue Slip Postpone a Nomination Indefinitely?

Depending on the chairman's policy during a given Congress, the postponement of a nomineewould either take a return of a negative blue slip or the failure of a Senator to return a blue slip. Seetable on the blue-slip policy of the last six chairmen.

Are Blue Slips Public Information?

Yes. As part of the June 2001 reorganization agreement, blue slips were made public for thefirst time starting in the 107th Congress. The status of every blue slip for the 108th Congress can befound on the Office of Legal Policy website page. (86)

Conclusion

The blue slip represents an aspect of senatorial courtesy. Blue-slip policy has undergonevarious changes in its 86-year history. The blue slip started out as a way for the Judiciary Committeechairman to gain information on a judicial nomination. From 1917 to 1956, the blue slip providedhome-state Senators with a means of notifying the chairman if the President selected an individualwho was personally objectionable to them. A negative blue slip did not stop committee action. Untilthe mid-1950s, other Senators would reject a nomination on the Senate floor if the home-stateSenator would stand and state that the nominee was "personally obnoxious." Eventually, the blueslip evolved from an informal committee device once used to gain information on a nominee to animportant device for checking the executive branch in the appointment process.

Since 1979, the impact of negative blue slips has varied as leadership in the SenateCommittee on the Judiciary has changed. Some chairmen have permitted committee action on anomination only when both home-state Senators return positive blue slips. However, other chairmenhave proceeded to consider a nomination with receipt of only one positive blue slip. Even thoughrecent chairmen have implemented different blue-slip policies, each has communicated to thePresident the importance of pre-nomination consultation with both home-state Senators. Pre-nomination consultation has been a key expectation of recent chairmen in the evaluation ofnegative blue slips. The President is now expected to consult and involve each home-state Senatorin the pre-nomination phase of the selection process. Without consultation by the White House,chairmen appear to accord greater value to a negative blue slip submitted by a non-consultedhome-state Senator.

While the Judiciary chairman controls the impact of a negative blue slip, individual Senatorscan still determine the fate of a judicial nomination after it is reported to the Senate floor. A Senator,or a group of Senators, may choose to either place a hold on or filibuster a nomination. In eachinstance, at least theoretically, a vote can be delayed indefinitely -- thus preventing confirmation ofthe President's nominee. A negative blue slip, therefore, is not the only means available to preventthe confirmation of a judicial nomination by a home-state Senator.

This report will be updated to reflect policy changes relating to blue slips.

Table 1. Senate Judiciary Committee Blue-Slip Policy by Committee Chairman (1956-2003)

a See Charles R. Babcock, "Picking Federal Judges: Merit System v. Pork Bench," Washington Post , November 7, 1978, p. A4; and W. Dale Nelsonand Fred S. Hoffman. Associated Press, January 25, 1979.

b See U.S. Congress, Committee on the Judiciary, Selection and Confirmation of Federal Judges: Hearings Before the Senate Committee on theJudiciary . Part I, 96th Cong., 1st Sess., (Washington: GPO, 1979), p. 4.

c See U.S. Congress, Senate Committee on the Judiciary, Business Meeting, unpublished committee transcript, 97th Cong., 1st Sess., 1981, p. 6. (Author's files).

d See Mike Robinson. Associated Press, May 19, 1989 and Sen. Joseph R. Biden, Jr., Chairman, Committee on the Judiciary, U.S. Senate, letter toPresident George H. W. Bush, The White House, June 6, 1989. (Author's files).

e Sen. Orrin G. Hatch, Chairman, Committee on the Judiciary, U.S. Senate, letter to Counsel to the President Abner J. Mikva, The White House,February 3, 1995. (Author's files).

f See Sen. Orrin G. Hatch, Chairman, Committee on the Judiciary, letter to Counsel to the President, Charles C. F. Ruff, The White House, April 16,1997. (Author's files).

g See Elizabeth A. Palmer and Amy Fagan, "Power Shift at Judiciary Could Be Problem for Bush," CQ Daily Monitor , May 24, 2001, p. 3; and Elizabeth A. Palmer, "Senate GOP Backs Down From Dispute Over Handing of Nominees," CQ Weekly , June 9, 2001, p. 1360.

h Letter from Senators Patrick Leahy and Orrin Hatch, inserted material, Congressional Record , vol. 147, June 29, 2001. See also Helen Dewar, "SenateReorganization Finalized; Democrats Pledge to Follow Tradition on Court Nominees," Washington Post , June 30, 2001, p. A11; and AudreyHudson, "Republicans Back Bench-picks Deal; California Democrats Given Key Role," Washington Times , June 10, 2001, p. A03.

i See Jennifer A. Dlouhy, "Blue Slip or Not, Hatch Holds Judiciary Panel Hearing on Bush Court Nominee," CQ Today , July 31, 2003, p. 8; and HelenDewar, "Battle Over Judges Continues," Washington Post , July 31, 2003, p. A17.

Additional Resources

Chase, Harold W. Federal Judges: The Appointing Process (Minneapolis:University of Minnesota Press, 1972).

Denning, Brannon P. "The Judicial Confirmation Process and the Blue Slip." Judicature 85:218-226, 2002.

----. "The 'Blue Slip': Enforcing The Norms of the Judicial Confirmation Process." William & Mary Bill of Rights Journal. 10: 75-101, 2001.

Goldman, Sheldon. Picking Federal Judges (New Haven, CT: Yale University Press,1997).

Grossman, Joel B. Lawyers and Judges: The Politics of Judicial Selection (NewYork: John Wiley & Sons, 1965).

Harris, Joseph P. The Advice and Consent of the Senate: A Study of the Confirmationof Appointments by the United States Senate (Berkeley, CA: University ofCalifornia Press, 1958).

Mackenzie, G. Calvin. The Politics of Presidential Appointments (New York: TheFree Press, 1981).

Slotnick, Elliot E. "Reforms in Judicial Selection: Will They Affect the Senate'srole? (Part I)" Judicature 64:60-73, 1980.