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No Such Thing as Exceptions to the Blue Slip Rule

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In their effort to stack our nation’s federal courts with as many far-right ideologues as possible, Republicans have been threatening to do away with the blue slip policy. Conservatives are outraged that Democratic senators dare to exercise a right they have long had, and which Republican senators routinely exercised during the eight years Barack Obama was president. In Minnesota, Sen. Al Franken has stated that he will not return his blue slip for Eighth Circuit nominee David Stras. And in Oregon, Ron Wyden and Jeff Merkley are withholding their blue slips for Ninth Circuit nominee Ryan Bounds. In neither case did the Trump White House engage in any meaningful consultations with the home state senators, cutting them out of the “advice” portion of their constitutional “advice and consent” responsibilities that the blue slip was designed to protect.

Courthouse News reports that Senate GOP leaders are continuing to make threats: “Texas Sen. John Cornyn, the number two Republican in the Senate and a member of the Judiciary Committee, said it could be reasonable to do away with the tradition ‘on a case by case basis.’”

That’s cynical doublespeak.

Making exceptions on a case by case basis may sound like a reasonable compromise to some people. But the fact is that any exception, no matter how infrequent, would be anything but a compromise: When a policy is absolute (as the blue slip policy has been under both Grassley and his Democratic predecessor Patrick Leahy), then making exceptions, even infrequently, is by definition eliminating the policy. Either home state senators have a universally recognized prerogative to block nominees, or they don’t.

As we stated in an edit memo last July:

If the chairman can unilaterally usurp home state senators’ authority at any time, then the protections of the blue slip rule simply do not exist.

But this pressure campaign—accusations of slow-walking combined with threats to make “exceptions” to the blue slip rule—can succeed only if Republicans hide two basic and indisputable truths:

  1. Republican refusals to agree to hearings by submitting blue slips have been respected 100% of the time—regardless of the reason or lack thereof, regardless of the nominee, regardless of the party of the president or chairman, and regardless of the need to fill the vacancy as soon as possible; and
  2. Republicans are demanding that Democrats submit blue slips much earlier for Trump nominees than was the case for Obama nominees.

There is no such thing as making exceptions to the blue slip policy as it has been practiced under the past two chairmen. Chuck Grassley should resist pressure to change the rules just because his party now controls the White House. But if he holds a hearing for any nominee without blue slips from both home state senators, all other senators will be on notice. He will have stripped each one of a major prerogative, eliminating the blue slip rule in fact even if he pretends otherwise.