Senators can still block nominations without filibuster

Republicans can stall picks from home state

WASHINGTON — Now that Democrats have removed the threat of Republican filibusters to block nominees, attention in the Senate is turning to another procedural
fuel for gridlock over judicial appointments: blue slips of paper.

No, it is not a fight over mundane office supplies. Blue slips are at the core of senators’ individual power to shape the makeup of the federal bench in their home states.

By withholding a written opinion on a district or appellate court nominee’s fitness from the Senate Judiciary Committee — an opinion that is traditionally submitted on a blue slip — Republican senators can freeze action on many of President Obama’s judicial nominees.

It is a strategy already employed in a handful of cases, and which the White House, Senate aides, and judicial observers expect Republicans to rely upon increasingly as Obama begins offering more names to fill vacancies around the country.

Combined with the chronic threat of a filibuster, the additional threat of withholding blue slips had already contributed to Obama’s reluctance to nominate judges in certain states: Of the 31 seats in the federal judiciary that have been vacant for at least six months, 28 are from states with at least one Republican senator.

So far, Democrats have not moved to change the rules on blue slips. But Senator Patrick Leahy, a Vermont Democrat and chairman of the Judiciary Committee, did issue a veiled threat: If it becomes apparent the GOP is abusing the process, this tradition, too, could fade.

“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 in a statement. “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.”

The tradition dates to at least 1917, when it emerged as a way to ensure the president was properly consulting with the legislative branch on nominees. It has its roots in the very first Senate session, when George Washington was rebuffed when he tried to nominate a naval officer over the objection of the home-state senators.

But over the years, the tradition has evolved: If a senator does not return the blue slip, all committee action on a nominee comes to a halt. There are no hearings, no votes, until both senators submit their blue slips. It effectively gives home-state senators a veto.

With partisan paralysis now the norm, instead of an atmosphere of Senate negotiation, specialists in judicial nominations say blue slips could become a weapon for stonewalling nominees in the 30 states with at least one Republican senator.

“It used to be more collegial. Minority senators realized elections had consequences and the federal system needs judges,” said Russell Wheeler, a researcher at the Brookings Institution who closely tracks judicial nominations.

That spirit of cooperation depended on recognition that party power ebbs and flows. Minority senators knew that they would want a degree of collegiality if their party gained the White House and began making judicial appointments.

Now, said Wheeler, “all those rules are out the window. It’s fighting tooth and nail every day, and we’ll see what’s next.”

Senate Democrats on Nov. 21 used a rare maneuver to eliminate the use of filibusters to block most presidential appointments. The change allows all nominees except those for the Supreme Court to be approved by a simple majority, rather than the 60-vote threshold that has been used for decades.

Many Republicans have promised they will retaliate, but it remains to be seen what levers of power they will use. In addition to manipulating the blue slip process, they could simply not show up at Judiciary Committee hearings, preventing a required quorum to hold votes.

The Senate rules contain a variety of procedural mechanisms to cause delays, either in committee or on the Senate floor. And individual senators can still place anonymous “holds” on nominees, although that process is now easier to overcome under the Democrats’ elimination of the filibuster.

Over the years, under different committee chairmen, the rules around blue slips have changed. When Senator Edward M. Kennedy took over the committee in 1979, he changed the longstanding policy and allowed nominations to continue even if blue slips were not returned.

That policy continued, with some changes, until Leahy took over the committee in 2001 and reinstated the old policy of permitting the blockades.

That allowed Democrats to thwart some of President George W. Bush’s nominees. The two Democratic senators from Michigan, for example, withheld blue slips in 2002 to block nominations in the Sixth Circuit Court of Appeals, which handles cases from Ohio, Michigan, Kentucky, and Tennessee.

There are 10 nominees who are idled in the Judiciary Committee because home-state senators — all Republicans — have not returned their blue slips. It means states around the country are dealing with backlogs in cases, and understaffing of judges, while constitutents wait for the courthouses to be filled.

The district court in Eastern North Carolina has had a vacancy since 2006, the longest-running judicial vacancy in the country. Obama nominated Jennifer Prescod May-Parker to fill the position in June but hearings have not started because Senator Richard Burr, a North Carolina Republican, has not returned his blue slip. She has been rated “unanimously qualified” by the American Bar Association. Burr did not return requests for comment.

The federal district courthouse in Arizona has been operating with five judicial vacancies. It is among the busiest and most understaffed courts in the country, and the vacancies have been deemed a judicial emergency. Obama nominated judges to fill those seats in September, but hearings have yet to begin. After the hearings, it can take months before a full Senate vote.

“We’ve not yet received the blue slips from the Arizona senators,” Leahy said at a Nov. 20 hearing, stating his desire to begin the confirmation process. “Once they return those blue slips, we can include them.”

A day after the Globe inquired about the Arizona delay, Senator John McCain said through a spokesman that he returned his blue slips on Tuesday, but he would not specify a reason for the delay. A spokeswoman for the state’s other senator, Jeff Flake, also a Republican, confirmed that he had not submitted his blue slips but would not say why.

The 11th Circuit Court in Georgia is operating with four vacancies out of the 12 allotted judges for the courthouse, all of them deemed judicial emergencies.

One of the seats has been vacant since August 2010; Obama nominated Jill Pryor in February 2012 to fill the seat, but she has not had any committee hearings because the state’s two Republican senators – Saxby Chambliss and Johnny Isakson – have withheld their blue slips.

A spokeswoman for Chambliss said he wouldn’t comment on an individual nominee; Isakson declined to comment.

Obama also nominated two judges in South Carolina in June who have yet to have a confirmation hearing because blue slips haven’t been returned. The Republicans senators from South Carolina — Lindsey Graham and Tim Scott — did not respond to requests for comment.

A judge from Florida, William Thomas, was nominated by Obama in November 2012 for a seat in the Southern District of Florida. If confirmed, he would be the first black openly gay man to serve on the federal bench.

Senator Marco Rubio, after initially recommending Thomas, withdrew his support in September, citing “questions about his judicial temperament and willingness to impose appropriate criminal sentences” in two Florida cases this year.

As a result, Rubio has not returned his blue slip, essentially scuttling a nomination he helped put forward in the first place.