Grassley Speaks on the History of the Blue Slip Courtesy for Judicial Nominees
Nov 13, 2017
Prepared Floor Statement by Senator Chuck Grassley of Iowa
Chairman, Senate Judiciary Committee
On the History of the Blue Slip Courtesy for Judicial Nominees
November 13, 2017
Mr. President, in the last several weeks, there’s been a lot of discussion regarding the blue slip courtesy that applies to judicial nominations. So I want to take a moment to clarify a few things. My position hasn’t changed. Like I said in November of last year, I intend to honor the blue slip courtesy but there have always been exceptions.
First, the blue slip has always been a senatorial courtesy. It’s premised on the idea that home-state senators are in a good position to provide insights into a nominee from their state.
It’s meant to encourage consultation between the White House and home-state senators about judicial nominations. That’s why I value the blue slip tradition and ask for the views of senators on all nominees to courts in their states.
Throughout its history, the many chairmen of the Senate Judiciary Committee have applied the blue slip courtesy differently. That’s a chairman’s prerogative. The chairman has the authority to decide how to apply the courtesy.
Over the past 100 years, there have been eighteen chairmen of the Senate Judiciary Committee who recognized the blue slip courtesy.
But only two out of these eighteen chairmen required both senators to return positive blue slips before scheduling a hearing.
The practice of sending out blue slips to home-state senators started in 1917. Chairman Charles Culberson started the blue slip practice to solicit the opinions of home-state senators.
But he did not require the return of two positive blue slips before the Committee would proceed on a nominee.
In fact, in the blue slip’s very first year, Chairman Culberson held a hearing and a vote for a nominee who received a negative blue slip. His successors over the next nearly forty years had the same policy.
It was not until 1956 that the blue slip policy changed under Chairman James Eastland, a Democrat from Mississippi. Chairman Eastland began to require both home-state senators to return positive blue slips before holding a hearing and a vote.
Chairman Eastland was well-known for his segregationist views. Unfortunately, it’s likely that he adopted a strict blue slip policy to veto judicial nominees who favored school desegregation. As Villanova Law School Professor Tuan Samahon explained: “When segregationist ‘Dixiecrat’ Senator John Eastland chaired the Judiciary Committee, he endowed the blue slip with veto power to, among other things, keep Mississippi’s federal judicial bench free of sympathizers with Brown v. Board of Education.”
In 1979, Senator Ted Kennedy became chairman. He got rid of Senator Eastland’s policy. He didn’t want a single senator to be able to unilaterally veto a judicial nominee. Senator Kennedy’s policy was that an unreturned or negative blue slip wouldn’t prevent the Committee from conducting a hearing on a nominee.
Senator Strom Thurmond continued this policy when he became chairman. So did Senator Joe Biden. So did Senator Orrin Hatch. Each of these chairmen allowed hearings for nominees who had negative or unreturned blue slips.
In 1989, Chairman Biden sent a letter to the White House articulating his blue slip policy. He wrote:
“The return of a negative blue slip will be a significant factor to be weighed by the committee in its evaluation of a judicial nominee, but it will not preclude consideration of that nominee unless the Administration has not consulted with both home state Senators prior to submitting the nomination to the Senate.”
Obviously, chairmen from both parties saw the danger of allowing one or two senators to veto a nominee for political or ideological reasons.
My predecessor, Chairman Leahy, reinstated Chairman Eastland’s strict blue slip policy. Some believe he did so in order to exert firmer control over the new Bush Administration’s nominees. But, even he said he wouldn’t stand for senators abusing the blue slip to delay or block nominees.
Chairman Leahy said the blue slip courtesy was “meant to ensure that the home state Senators who know the needs of the courts in their state best are consulted and have the opportunity to make sure that the nominees are qualified” and should not be “abused simply to delay [the Committee’s] ability to make progress filling vacancies.”
He also said, “I assume no one will abuse the blue slip process like some have abused the use of the filibuster to block judicial nominees on the floor of the Senate. 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.”
As I’ve said all along, I won’t allow the blue slip to be abused. I won’t allow senators to block nominees for political or ideological reasons. This position is consistent with the historical role of the blue slip courtesy. It also matches my personal experience with the blue slip.
In my first year in the Senate, a vacancy arose on the Eighth Circuit. At the time, I served with a Republican senior senator from Iowa, Senator Roger Jepsen, and we had a Republican president, Ronald Reagan.
Senator Jepsen and I thought the nominee should be a state judge from Des Moines. So we recommended his name to the White House. The White House decided they’d like to consider another name for the vacancy. The other individual, Judge Fagg, was a state court judge in Iowa. The White House interviewed the judge supported by both Iowa senators, along with interviewing the other nominee.
President Reagan ultimately nominated the other nominee for the vacancy. He wasn’t the person that Senator Jepsen and I recommended. But the White House thought he was better suited for the circuit court. And that ended up being correct: Judge Fagg served with great distinction for more than two decades.
Even though he wasn’t our pick, both Senator Jepsen and I returned our blue slips on the nominee. That wasn’t unusual—more deference has always been given to the White House with circuit court nominees.
When Judge Fagg was nominated to the Eighth Circuit both Senators from Iowa were Republicans. And the blue slip practice didn’t change when Senator Harkin, a Democrat, was elected to the Senate.
When Senator Harkin and I served together for 30 years we didn’t have any problems with judicial nominees. Generally, when there was a Republican president, I sent a list of names to the President and, when there was a Democratic president, Senator Harkin sent a list of names to the White House.
We served together for those 30 years and never had a problem with blue slips. Not once.
During the Clinton Administration a vacancy arose on the Eighth Circuit. The White House nominated Bonnie Campbell for the Court.
Ms. Campbell was originally from New York and previously worked for two Democratic senators. For six years she served as the Chairwoman of the Iowa Democratic Party. Ms. Campbell was elected as Iowa’s Attorney General defeating the Republican candidate. She also ran for Governor against Gov. Terry Branstad. After she lost that election, she was appointed by President Clinton to a position within the DOJ.
She wasn’t the type of nominee I’d pick for the Court. But that didn’t stop me from returning my blue slip.
Ms. Campbell was a controversial nominee. During her campaign for governor she was quoted discussing Christian conservatives. She said, “I hate to call them Christian because I am Christian, and I hate to call them religious, because they’re not, so I’ll call them the radical right.” Ms. Campbell had a very liberal record and spent most of her career as a politician. A lot of people didn’t want me to return her blue slip.
So why did I return her blue slip? Because the blue slip isn’t supposed to allow the unilateral veto of a nominee.
I was criticized extensively by the conservative base of Iowa. But a senator can’t use a blue slip to block a nominee simply because he or she doesn’t like the nominee’s politics or ideology.
A senator can’t use a blue slip to block a nominee because it’s not the person the senator would’ve picked. The president gets to nominate judges.
The White House should consult home-state senators and it’s important that they do so in a meaningful way. But the White House may disagree with senators and may determine that a different individual is more suited to serve on the circuit court. So long as there is consultation, the President generally gets to make that call.
So, I won’t let senators abuse the blue slip to block qualified nominees for political or ideological reasons.
I yield the floor.