Get rid of ‘blue slips’ for judicial confirmations — now

When it comes to judicial confirmations, Democrats are at risk of becoming Charlie Brown and having the football swiped out from under them — again. They are clinging to Senate traditions that Republicans have discarded. The next few months are a test. Will Democratic senators allow the metaphorical football to be swiped from them again?  

Blue slips are one such tradition that Democrats are clinging to. These refer to a form that a senator fills out and returns to the Senate Judiciary Committee to signal their support for a candidate nominated to fill a vacancy in the senator’s home state.

Once upon a time, blue slips made sense. They gave deference to home state senators and ensured that a senator’s local knowledge was taken into account. This was back when senators were inclined to work with the White House regardless of party.

We now live in a time when judicial vacancies are stolen and Senate norms are readily discarded to maximize confirmations. The sanctity of blue slips was eliminated when then-Senate Majority Leader Mitch McConnell (R-Ky.) did away with them for circuit court nominees during the Trump administration. Blue slips, being a norm and not a rule, could be scrapped without a Senate vote. One day, McConnell simply stopped deferring to this tradition.  

Democrats need to do the same for district court seats if they want President Biden to exceed President Trump’s 234 confirmed judges in four years. At the midway point in his first term, Biden has had 97 federal judges confirmed, meaning the Senate needs to confirm another 138 to exceed Trump’s record. With most of 2024 likely to be consumed by the election cycle, the Senate must do everything it can to maximize confirmations this year.

Money is said to be the most important thing in politics. When it comes to filling judicial vacancies, time is the most important commodity. It takes time to identify and vet judicial candidates, to formally nominate them and then for the Senate to hold confirmation hearings and undertake the tedious process of moving nominations to the floor and through confirmation votes.

In concept, deferring to home state senators makes sense. But only if senators are inclined to work with the White House. Today, blue slips are ripe for abuse by senators who will oppose a nominee just to spite President Biden.

If the Senate eliminates blue slips for district court nominees, there is nothing stopping the White House from consulting a senator about a nominee or vacancy. But there would no longer be that expectation or that opportunity for obstruction.

I’m hearing there may be an appetite to eliminate blue slips ifthere are concerted efforts to obstruct confirmations this year. This sounds like Charlie Brown inviting Lucy to swipe the football again.

I am not recommending that Democrats replicate everything in McConnell’s playbook. I am recommending, however, that Democrats not make it so easy for the GOP to obstruct their efforts to diversify the federal courts.

To really maximize these next two years, the Senate should also reduce the required floor time for circuit court nominees from 30 hours to two hours and enable it to consider multiple judicial nominees simultaneously. Ideally, these three changes would be made together. But at a minimum, it’s time to scrap blue slips.

The Senate is arguably already behind. Not only does it have a backlog of nominations from the previous Senate, it is taking much of January off. This is after the previous Senate took much of the latter half of 2022 off and didn’t maximize the lame duck for confirmations.  

Another reason for urgency is a vacancy map that is much less friendly than the last. Over the past two years, the White House prioritized district vacancies in states with two Democratic senators, which pretty much guaranteed that there would be no blue slip issue. To exceed Trump’s 234 confirmations, the White House will have to turn increasingly to district vacancies in states with one or two GOP senators.

To wait to eliminate blue slips or to retain them indefinitely is to invite obstruction and to risk leaving vacancies unfilled. It’s to play into McConnell’s hands. Instead, the Senate should scrap blue slips now and not give in to Lucy’s offer of the football.  

Russ Feingold is president of the American Constitution Society and previously served 18 years as a U.S. senator from Wisconsin.