The Blue Slip Explained, a Senate Courtesy That Shapes Every Federal Bench

Here is a paradox. One of the most powerful tools in the confirmation of federal judges is not in the Constitution, not in a statute, and not in the written rules of the Senate. It is a piece of paper. Historically, it was a blue piece of paper.

The blue slip can keep a nominee from getting a hearing, and it can do that when the nominee has the President's support, a majority of the Senate, and a spotless résumé. It is a custom, enforced by one man, the chairman of the Senate Judiciary Committee. This explainer sets out what it is, where it came from, how chairmen have treated it differently, and what it means for a citizen watching a nomination.

Let me define the terms, because this subject is full of loose language.

What the blue slip is

The Senate Judiciary Committee considers nominations for federal judgeships and for some executive posts. When the President nominates someone to a seat in a particular state, the committee sends a form to the two senators from that state. The form asks whether the senator approves of the nominee. Historically the form was printed on blue paper, hence the name. The senator returns the form marked in favor or opposed, or does not return it at all.

Under the chairman's policy, if a home-state senator returns a negative slip, or sits on it, the committee does not schedule a hearing on that nominee. That is the veto. Whether the veto is honored, for which nominees, and how strictly, is a matter of the chairman's choice.

The slip applies to some nominations, not others. It has been used for district court judges, for circuit court judges (the regional courts of appeals), for U.S. attorneys and for U.S. marshals. These are positions tied to a state or a district within it. The slip has never applied to Supreme Court nominees, who serve the whole country and belong to no state. It does not apply to nominees for many executive posts that have no state home.

It is a custom, not a rule. Nothing in the Constitution creates it. Article II, Section 2, Clause 2 says the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint... Judges of the supreme Court, and all other Officers of the United States." The text gives the Senate as a body the power to consent. It says nothing about individual senators, and nothing about a state. The Senate may set its own rules, under Article I, Section 5, and its committees can set their own practices. The blue slip is one of those practices. It lives in tradition and in the policy of whoever holds the gavel.

That fact explains almost everything else about it. A custom can be honored strictly, loosely or not at all, and each chairman decides.

Where it came from

The usual account traces the practice to about 1917, in the chairmanship of Senator Charles Culberson of Texas. The origins are murky, and I would not rest an argument on the precise date. What is clear is the logic that produced it.

For much of American history, judicial appointments were bound up in what was called "senatorial courtesy." The idea was that a President should not appoint someone to a federal post in a state without clearing it with the senators of that state, at least if they belonged to his party. The senators knew the local bar, the local politics and the local candidates, and they expected a say in who held federal jobs in their state. The Senate as a body tended to back a colleague who objected, on the principle that every senator might one day want the same courtesy.

The blue slip is that courtesy put on paper and run through the committee. It turned an informal habit into a procedure with a form.

The power of the slip rose and fell with the personalities of the chairmen. Senator James Eastland of Mississippi, who chaired the Judiciary Committee from 1956 through 1978, began requiring both home-state senators to return positive slips before the committee would act. Senator Grassley has suggested the purpose was to veto nominees who favored school desegregation, and that is the dark side of the custom. A device that serves local knowledge can also serve local prejudice, and the history of the slip includes some episodes that no one should defend.

That is a point I want conservatives to hold in mind. A custom that lets one senator stop a nominee is not automatically conservative or liberal. It is a tool. In 1950s Mississippi it was used one way, and in later decades senators of both parties have used it for their own reasons.

How chairmen have treated it

Here is where the explainer has to be careful, since the history involves partisan disputes, and I want to state only what I am sure of.

1. Recognizing the courtesy was the long norm, but strict honoring was rarer. Over about a century, eighteen chairmen recognized the blue slip, according to Senator Grassley, but only a few required both home-state senators to return positive slips before scheduling a hearing: Eastland beginning in 1956, then Leahy and Grassley in the Obama years.
2. For circuit judges the practice varied. The circuit courts cover several states, and a circuit judge is not tied to one state in the way a district judge is. Several chairmen have treated a home-state senator's objection to a circuit nominee as a veto, and others have not. In the early years of the twenty-first century the practice shifted, and the shifts were part of the larger fight over judicial confirmations.
3. Chairmen honored the slip even against their own party's President. When Senator Patrick Leahy chaired the committee during President Obama's years (2009 to 2014), he required two positive slips for district and circuit nominees, including from Republican senators. Senator Chuck Grassley did the same as chairman in 2015 and 2016. A Congressional Research Service report counted 20 Obama nominees with slip problems, of whom two were later confirmed after home-state senators dropped their opposition.
4. In 2017 the policy for circuit judges changed. Chairman Grassley allowed hearings for circuit nominees without two positive slips, reasoning that there is less reason to defer to the views of a single state's senator for such nominees. David Stras, a Minnesota nominee to the Eighth Circuit, was confirmed in January 2018 over the opposition of at least one home-state senator, the first circuit nominee confirmed under the new policy.
5. For district judges the courtesy remained. The committee still required two positive slips from home-state senators before considering a district nominee. U.S. attorneys also work in a single state, and the practice for them has followed the same logic.

This is the arrangement the 2017 decision set: the blue slip no longer works as a veto for circuit nominees, and continues to have force for district judges. Later chairmen have had to decide whether to keep it, and you should check the current committee's practice rather than assume it, because it is the chairman's policy, and policies can change.

The case for the blue slip

Let me state the best case for keeping the custom, because it is a serious one.

Local knowledge. A district judge serves one state's people. A senator from that state knows its bar, its courts and its communities. The slip gives that senator a way to say, before the President has settled on someone, that the nominee is unfit or out of touch.

A check on the President. A President who knows that home-state senators can stop a nominee will consult them first. That produces more consensus nominees and fewer fights. A senator of the opposing party can persuade the President to choose someone moderate, and, in exchange, the nominee has a fast path to confirmation.

Federalism. The country is a union of states. The senators are, in the original design, the states' representatives, even though the Seventeenth Amendment now has them elected by the people. A federal judge in Ohio decides the cases of Ohioans. Some say that the people of Ohio, speaking through both senators, should have a veto.

Minority rights in the Senate. The Senate has always protected the minority, and the slip protects it in one more place. After the filibuster for judicial nominees was eliminated, as The Nuclear Option of 2013 and 2017, and How Filibusters for Judges Ended describes, the blue slip remained one of the last tools a minority senator held over a nomination from his own state.

The case against

And the best case against.

It gives one person a veto over a power that belongs to the Senate as a whole. The Constitution gives the consent power to the Senate, not to a single senator. A custom that allows one member to stop a nominee, without a vote and without a recorded reason, shifts power from the body to the individual.

It can reward obstruction. A senator who withholds a slip does not have to explain why, and the nominee never gets a hearing, so the objection is never tested in public. The usual constitutional pattern is open debate and a recorded vote. The slip is hidden by design.

It is applied unevenly. If the practice is whatever the chairman decides, then the rule changes with the person in the chair, and the party in power can drop it when it is inconvenient and revive it when it helps.

For circuit courts, the home-state logic is weaker. A circuit covers multiple states. A veto by the senators of one state over a seat that decides cases for several seems hard to justify, and that was Grassley's reasoning in 2017.

My view, and I state it plainly, is that the 2017 line is defensible and consistent: the slip makes more sense for judges and prosecutors whose work is local than for judges whose rulings bind a region. But a conservative should hold the position in a principled way, which means being willing to accept it when it hurts. A rule one defends only when one's own party benefits is not a principle. If you favored the slip when it blocked an Obama nominee and abandoned it when it blocked a Trump nominee, think about why.

A worked example

Picture a hypothetical. The President nominates a lawyer named Dana Whitfield to a district judgeship in a state with two senators. Call it State A. The nominee is well qualified. One senator, who belongs to the President's party, returns a positive slip. The other, who belongs to the opposing party, is unhappy about the choice and does not return the slip.

Under a strict-honoring chairman, the committee does not schedule a hearing. Dana Whitfield's nomination sits, and the White House has three options: negotiate with the senator, withdraw and offer a different name, or wait for a new chairman or a new Congress. If the senator is persuaded, the slip comes back and the process continues.

Now change one fact. The nomination is to the circuit court covering State A and several others. Under the 2017 practice, the senator's missing slip does not stop the hearing. The committee proceeds. The senator is free to testify against the nominee and to vote no, but the senator cannot block the committee from acting.

That small change in the facts, one seat versus another, captures the difference.

What it means for a citizen

I said at the start that this is an explainer for a family, so let me turn it into things you can do.

1. Know who your two senators are and which of them sits on the Judiciary Committee. Members of the committee decide whether a nominee reaches the full Senate. You can find the membership on the Senate's website, and you can find your own senators at my representatives.
2. When a nominee is announced for a seat in your state, ask both senators' offices whether the slip has been returned. The committee's records are not always the clearest, and the press often reports on the slip, but a constituent's question gets a staff member to check. You are entitled to ask your own senator whether he or she supports a nominee for the federal bench in your state.
3. Read the nominee's record. The questionnaire a nominee submits to the committee is public, along with the hearing transcript. How to Follow a Supreme Court Oral Argument, From the Line to the Transcript is about Supreme Court arguments, but the habit of reading primary documents is the same.
4. Understand that a hearing is not a confirmation. The slip governs whether a hearing is held. After the hearing, the committee votes, and then the full Senate votes, by simple majority since the changes described in When the Senate and the President Disagree on Judges, History Shows What Follows.
5. If you are troubled by how judges are chosen in your state, remember that the federal system is only one model. The states have their own methods, compared in Elected, Appointed or the Missouri Plan, How the States Choose Their Judges.

The constitutional yardstick

There is one thing to measure the blue slip against, and that is the text of the Constitution: the Constitution page has it in full. Article II, Section 2 gives the President the power to nominate and the Senate the power to consent. The custom of the slip is an exercise of the Senate's authority to run its own affairs. It is not forbidden by the text. It is also not required by it, and that is the key point for a student of constitutional structure. The framers gave the Senate wide discretion over how to consent, and the slip is one of many ways that discretion has been used.

What the framers would have thought of it is a matter of speculation, and I decline to guess. I can say that their central concern, in Federalist 76, was that the Senate's role would be a check on a President who might nominate unfit or unduly favored candidates. Hamilton wrote there that the Senate's concurrence would be "an excellent check upon a spirit of favoritism in the President." A check exercised by individual senators through a courtesy is a different design from a check exercised by the Senate as a body, but it is not alien to the framers' purpose.

The case in brief

1. The blue slip is a Judiciary Committee custom, not a constitutional provision or a statute, and its force depends on the chairman's policy.
2. It grew from senatorial courtesy, traditionally dated to about 1917, and has been used both well and badly, as the chairmanship of James Eastland shows.
3. Chairmen have honored it in varying degrees, Leahy and Grassley strictly in the Obama years, and in 2017 Chairman Grassley stopped treating it as a veto for circuit nominees.
4. The case for it is local knowledge, consultation and federalism, and the case against it is that it gives one senator a hidden veto over a power the Constitution gives the whole Senate.
5. A principled view applies the same rule whichever party holds the White House.

What you can do: the next time a federal judge is nominated for your state, call both senators' offices and ask whether the blue slip has been returned and why.