Can one Senator block a judicial nominee?

·3 min read
Kevin Wagner
Kevin Wagner

Q. Can one Senator block a judicial nominee with a blue slip?

A. The President nominates federal judges, with the advice and consent of the Senate. The Constitution does not define advice, though consent means a favorable vote in the chamber. Since it takes a majority to approve a judge, one vote is typically not enough to stop a nomination.

However, the Senate does have some customs and rules that allow one Senator to play a more pronounced role. Historically, Senators have given deference to a Senator when the nominee is from that Senator’s home state. This practice, called Senatorial Courtesy, has existed since the early years of our republic and is often attributed to the norm of collegiality in the chamber. It is also a recognition that a Senator from the same state as a nominee might have greater insight into the character and accomplishments of the individual in question.

The effectiveness of this courtesy in blocking a nominee changes with the politics, the times and the particular job for which the person is being nominated. While it is often informal, when it comes to federal judges, the process is a bit more prescribed. The Senate Judiciary Committee issues blue slips to the Senators from the state of the nominee for judge, which allows them to comment favorably or unfavorably. The blue slip process has been around since 1917; however, the impact of a negative comment or not returning the slip has changed over time.

The meaning of the blue slip is largely up to the chairperson of the Judiciary Committee. For much of the 20th Century, failure to obtain the approval of the home state Senator was taken into account, but it wasn’t immediately fatal. However, a withheld or negative blue slip meant that the nomination was unlikely to succeed. By the early 2000s, the negative or withheld blue slip meant the end of the nomination. The practice was a significant reason that President Obama left over 100 judicial seats unfilled.

In 2017, then-Senate Majority Leader Mitch McConnell (R-KY) recommended that blue slips not be allowed to block circuit court appointments, and that they, “simply be a notification of how you’re going to vote." By November of that year, hearings were scheduled for judicial nominations despite blue slips. By 2019, a number of appointments were made to the Courts of Appeal despite negative or withheld blue slips from home state Senators.

While the Biden administration has been nominating and confirming judges at a rapid rate, most of those appointments were made in states controlled by Democrats. This left open the question of whether the Senate, now under Democratic control, would return to the previous blue slip process. However, the recent decision of the Senate Judiciary Committee to take up a nominee from Tennessee, who is opposed by both sitting Senators, suggests that blue slips will not end nominations anymore.

While a system that gave the ability of one Senator to block a judge seems a bit heavy-handed, there was some value in it. The blue slips forced presidents to choose nominees that could get some bipartisan consensus. Under the current system, we are likely to populate the bench with candidates much farther from the center.

Kevin Wagner is a noted constitutional scholar and political science professor at Florida Atlantic University. The answers provided do not necessarily represent the views of the university. If you have a question about how American government and politics work, email him at kwagne15@fau.edu or reach him on Twitter @kevinwagnerphd.

This article originally appeared on Palm Beach Post: Do Senate rules allow a single Senator to block a judge's appointment?

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