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November 27, 2013 9:41 AM The Blue Slip Loophole To Filibuster Reform

By Ed Kilgore

Even as pundits sigh for the grand old days of the Senate as the venue of Wise Old (White) Men who understood their role as the saucer that cooled the coffee blah blah bark bark woof woof, there’s one grand old Senate “custom” that may significantly reduce the impact of filibuster reform. TPM’s Sahil Kapur refreshes our memories about the persistence of “blue slips:”

The blue slip is an old tradition, dating back to at least 1917, that lets senators have a say on which judges are appointed to courts in their home state. The way it works is that when a judge is nominated, the Judiciary Committee sends a “blue slip” to home state senators seeking their approval. If they sign off, the committee moves forward with the nomination. If one or both of them disapproves or withholds the blue slip, the nomination tends to grind to a halt.
The White House contends that the blue slip policy remains an impediment to appointing judges. Given the Senate’s adherence to the tradition, Obama prefers not to nominate individuals and put them through the tough process unless they’re pre-approved by home state senators. Most of the 42 district and appellate court vacancies without nominees are in states with GOP senators. In Texas, for instance, there are seven judicial vacancies with no nominees.
The blue slip is not a formal Senate rule and can be ignored. Over time, some committee chairs have adhered to it more closely than others. Senate Judiciary Chairman Patrick Leahy (D-VT) has stood by the practice and said after the filibuster change he will continue to do so.
“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,” Leahy said. “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.”

I’m sure Leahy knows there’s every reason to think GOPers will now “abuse” the blue slip “process” now that they can’t filibuster judicial nominees. They are under intense pressure from a variety of conservative constituencies—most stridently the Christian Right, which thinks legalized abortion is a judicially-created American Holocaust—to use whatever tools come to hand.

But the remedy is easy enough: just stop respecting the “custom” when it’s “abused.” Blue slips aren’t in the Senate rules. There’s no body of popular lore defending the practice. It’s even possible blue slips could be abolished without the generation of hundreds of columns and op-eds lamenting the passage of another venerable tradition that made the Senate civil and our politics bipartisan etc. etc. in saecula saeculorum amen.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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