Back in November, when Senate Majority Leader Harry Reid finally countered routine Republican filibustering of judicial and executive branch nominees with a long-overdue change to Senate rules, there was no small amount of Republican outrage.
But Reid didn’t do anything to address a lesser-known procedure that was just as effective in stalling judicial nominations specifically: the blue-slip process.
It’s not in the Constitution, or even in the Senate rules. It’s more of a tradition, and one that’s been jealously guarded by a top Democrat in Reid’s own caucus, Senate Judiciary Committee Chairman Patrick Leahy, D-Vt.
It works like this: When the senior senator of the president’s party puts the name of a federal judicial candidate forward, and the president nominates that person for an open spot on the bench, both home-state senators sign a blue piece of paper, indicating they have no objections to the nominee being considered in hearings before the Judiciary Committee. No blue slip, no hearings. And that’s true even if one of those home-state senators is a member of the other party!
Nevadans know all about this because of the tragic miscarriage of justice that was the 2012 nomination of Elissa Cadish, an excellent, well-qualified state District Court judge nominated to the federal bench. But because Republican Sen. Dean Heller didn’t like the way Cadish had answered a questionnaire about gun rights, he refused to sign her blue slip. As a result, Cadish was forced with withdraw her nomination. (She later received one of the top retention scores of all judges in Clark County by attorneys in the Review-Journal’s annual judicial survey.)
But Cadish’s qualifications, high esteem among her peers and support from Reid didn’t matter; because of tradition, one man was able to stage a filibuster that cost Nevada’s federal bench a good judge.
Now, Politico reports Leahy’s adherence to tradition may be coming under review, as Democrats ponder whether to do away with the blue-slip tradition. The move apparently has the support of the White House, and would be consistent with the president’s previous position: Judicial candidates and executive branch nominees deserve an up-or-down vote in the Senate, and the use of rules (or, in this case, simple traditions) to frustrate that principle is unacceptable.
This time around, however, it may be a bit more tricky: It’s not only Republicans standing in the way, it’s Leahy, who apparently re-instituted the tradition when he took the committee’s gavel from Utah Republican Orrin Hatch, who had not always waited for blue slips during the George W. Bush administration. (During the Cadish matter, Reid reportedly met with Leahy, to no avail.)
In a statement provided to Politico, Leahy said nominations, even controversial ones, are proceeding, and thus the system is working: “I assume no one will abuse the blue slip process like some have abused 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 for a change.”
Not being abused? I’ve two words for you, senator: Elissa Cadish! The system has been abused, and Nevadans already have suffered because of it. Worse, Leahy is perfectly aware of the circumstances of that case. Some of his fellow Democratic senators think the process is broken, too. And special interest groups pressuring for change know it.
Reid’s action in changing the Senate’s filibuster rules was bold, but it’s produced results: A host of nominees languishing behind the filibuster wall were easily confirmed when it came down. The blue-slip tradition is just another, even smaller wall. Reid should make sure it’s torn down as well.