Paras Shah: Welcome to the Just Security podcast, I’m your host Paras Shah.
One of a President’s most important jobs is appointing federal judges. And it’s not just Supreme Court Justices that matter. Across the country, hundreds of federal judges decide cases that impact everything from environmental regulations to gun control to reproductive rights.
But an obscure process, called the “blue slip,” allows a single Senator to stop a judicial nomination in its tracks. To explain the blue slip, we have Caroline Fredrickson and Alan Neff. They recently wrote an open letter to Senate Judiciary Committee Chair Dick Durbin urging him to eliminate the blue slip for good.
Caroline is a Visiting Professor at Georgetown Law and a Senior Fellow at the Brennan Center for Justice. Alan recently served as co-editor of The Rule of Law This Week for the American Constitution Society and is a former Senior Corporation Counsel for the City of Chicago.
Caroline, Alan, welcome to the show. Let’s start by talking about why who becomes a federal judge matters?
Alan Neff: Judges play a huge role in either permitting or blocking or otherwise interfering with the implementation of public policy, federal policy, state policy, local policy. Judges are called on all the time – federal judges in some contexts,state judges too – to opine on the constitutionality and legality of legislation, executive orders, other administrative initiatives and they can bless them or they can consign them to limbo depending on their decisions.
Caroline Fredrickson: I would say a couple of things that I think maybe will go right to the heart of it. Dobbs, Dobbs and Dobbs, and I might add to that, Citizens United and Shelby County in a handful of other cases. We live in a society where our courts have judicial supremacy, that is, on matters that are of deep importance to all of us, that have some constitutional dimension, primarily the Supreme Court, but all of the federal courts are the final word for constitutionaldecision making. The courts are playing an outsized role in determining the future of our country and the current political and social situation.
Alan: I'd emphasize that last point that Caroline made about the outsized role that the judiciary plays in policy making and implementation. And, you know, in fairness, historically it's been a role that's been substantial for most of the life of the country, but it's now very much more politically charged than maybe it's ever been. Now it's just as clear as glass that the political composition of the judiciary is significant in what happens.
Paras: Okay, so as both of you said, federal judges play this outsized role in policy choices and policy decisions. And of course, like all people, their personal and professional backgrounds shape how they view and think about the law. So diversity among judges is particularly important. How has President Biden done at diversity in his appointees?
Caroline: He's done what he can to try and address the fact that the judiciary is not reflective by any means of the American population. But he's also looked at the practice areas – not as broadly as some of us might like, I think labor lawyers are not as well represented as they could be – but, he's gone beyond prosecutors and law firm partners to look at people who've done public interest law and civil rights law and who've been public defenders, and not just prosecutors, in the criminal justice system. So that's been very, very important.
Alan: I'd add a couple points to what Caroline said. First of all, if anybody's interested in sort of real time tracking of the numbers and demography of Biden's judicial appointments, Russell Wheeler at the Brookings Institute keeps very detailed records.I'd say he's one of the very best sources in it, and his material is very public. But I pulled up some of his data. Only five of Biden's 96 Circuit and Court appointees to date – this is through January of this year – were white males, leading to a drop in the demographics proportion of active judges from 51.4% on inauguration day to about 46%.
Paras: Let's drill down on the process for appointing judges, and that starts with the Constitution, which says that the president appoints with the advice and consent of the Senate. What does that look like in practice?
Caroline: The president appoints, and so the process is, in theory, meant to be a collaborative one. The final decision is the president's, but the Senate can, of course, reject. But the selection process has become more and more combative, and antagonistic, than it has in the past, with the Senate exercising its advice and consent power in a very, aggressive waywhen the opposite party controls the White House,
Alan: I'd add something to that too. There's the written constitutional framework for judicial selection, which is very simple. The president nominates and, with the advice and consent of the Senate, appoints. But in reality, for a very long time in this country, especially with respect to district court judges, frequently the nominees or the candidates who are considered for nomination by the president have already been provided by their senators. That is, it's a very plum piece of patronage, aggressively used by most senators of either party to ensure that people they want on the federal district court bench – the trial court bench in their states – are copacetic with them politically, constitutionally, intellectually.
Caroline: I mostly agree with Alan except that senators do tend to have some kind of process of forwarding names to the White House. There's more or less deference depending on who those nominees are. For example, you know, if there are two red State senators who are gonna forward names to President Biden that he just doesn't agree with, he's never gonna nominate those people. So to some extent it's true that they do have a process of vetting, and it differs. There's no actual – I think this is so interesting and bizarre, but, you know, people ask periodically, so what's the system that senators use? There is no system. They can just put together any process they want, including, you know, who their best friend from high school was and put that person on their list.
Some of them have very formal commissions that are long standing, that can be bipartisan if they're senators from different parties. Some of them have ratios depending on what party’s in the White House, it's completely different state by state. The White House has its own processes of connecting with organizations and individuals in the states for consideration. But they're always very aware of the need, to the extent possible, to consult with and get the blessing of the home state senators, because this is after all a judge who's gonna sit in their home state, and play this very important role that we've already discussed. Uh, you know, the federal judiciary, these people serve for life, so you don't wanna get it wrong. It's a very, very simple constitutional process, but in reality it's a bunch of informal – back of the envelope in some cases – adaptable procedures that are not controlled by any law and are fairly fluid at times.
Paras: So senators can put forward names for people who they want to see become judges. But they can also block nominees through a process called the blue slip. What is that?
Caroline: The idea of the blue slip is that it's a mechanism to ensure that the home state senators are in agreement with the nomination, at least with the nomination being considered. That is, that the Senate Judiciary Committee should not take up a nomination and hold a hearing and vet a nominee and move to a vote without the home state senators, in some sense, giving permission.
Now that being said, permission has really varied. It doesn't have to be in any particular way, and it doesn't actually have to be given at all. And at times it has been ignored, what the home state senators want. In fact, the two senators from Washington state objected to a ninth circuit nominee, and that's a circuit court, not a district court, but during the presidency of Donald Trump, and the Republicans in the Senate went forward anyway. And there have been many different versions. Sometimes, you know, you have to send in the permission slip to say it can go ahead. Sometimes it's a veto. You send it in if you don't want it to go forward. Sometimes it's one of the senators, sometimes it's two of the senators. The blue slip process is a completely variable option of the Senate Judiciary Chair, has been exercised very differently over its history and can be done away with by Dick Durbin without anyone else having to agree with him.
Alan: You know, the Senate, because every state gets two senators regardless of population, it tends to amplify minoritarian protections in the Senate. And the blue slip, like the filibuster, takes that minoritarian power to an entirely different order of magnitude, where a single senator can completely halt proceedings on a nomination in his or her own state where there might be a huge need for a judge because cases are not getting processed. It's like a mini filibuster. And in some ways it's even more opaque than the filibuster because at least, you know, on the Senate floor, they ask for a unanimous consent and if they don't get it, they can't proceed. But the blue slip can be just silence.
Caroline: You know, during the Obama administration, there were a number of vacancies in Texas, and the Texassenators were just unwilling to ever consider anybody that President Obama might nominate. So they refused to ever send in a blue slip on any of his nominees, and they refused to cooperate in finding nominees that might be mutually acceptable. And as a result, those seats remained empty. Now, of course, there was a method to their madness. What they were doing was keeping those seats open so that Donald Trump could fill them. And in fact, that's what he's done.
Paras: What should Senator Durbin as Chair of the Judiciary Committee do about the blue slip?
Alan: Caroline and I would just, as we did in the letter, encourage Senator Durbin to dispense with blue slips. If he wants, he can say, I'll give every senator an opportunity to propose two alternative nominees, and we'll have a committee discussion of them and we'll move there, will even somehow structure a floor discussion perhaps of those alternative nominees, but allowing senators to just block nominees passively, arbitrarily, and for what are often purely partisan reasons.
You already have a situation, where as we've discussed in practice, senators are usually the source of many of the nominees. So, giving senators additional power to block nominees is just ridiculous. We're now reaching a point in the cycle where there are a lot of vacancies in states with one or more Republican senators at the district court level, some at the circuit court level. The blue slip isn't in effect there, but it's still background noise, I'd say, for this whole process. So it's going to be much harder for Biden to sustain the rate of appointment and the diversity of appointment that he accomplished in his first couple of years.
Caroline: It means that you have really given the far right – and a minority that's quite extreme in its views – the ability toobstruct the interests of the vast majority of us who are looking for a judiciary that is highly qualified, knows the law, and represents all of us.
Alan: It's part of this whole bag of senatorial courtesy tricks that the Senate devised in part to palliate the very conservative southern segregationist, pro-segregation Democrats extensively during the New Deal and after. And even though the blue slip practice itself is rooted in somewhat older historical events, and this notion of “courtesy”, and I did air quote that, there's no place for it. The Senate is inherently so opaque and so slow moving, that adding courtesy to it is not merely sand in the gears. It's like a broomstick in the bicycle spokes. It's just gonna stop progress altogether.
Paras: Let’s leave it there. Caroline, Allen, thanks so much.
The Just Security podcast is produced in partnership with NYU's American Journalism Online program. AJO trains students to become world class journalists, no matter where they live or work. Find out more about AJO, and how you can apply, in our show notes.
This episode was hosted by me with co-production and editing by Tiffany Chang and Michelle Eigenheer. Our music is the song “The Parade” by Hey Pluto! Special thanks to Caroline Fredrickson and Alan Neff.
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