Blue Slips: Obstructing Qualified Nominees from Serving on the Federal Courts

The Senate is set to vote on Kevin Newsom’s confirmation to the 11th Circuit Court of Appeals today. With John K. Bush’s confirmation to the 6th Circuit Court of Appeals last week, the federal courts are gaining judges who are committed to upholding the rule of law and adhering to the Constitution. Despite Bush’s confirmation and Newsom’s upcoming vote, inaction towards two highly lauded and qualified candidates show that D.C. still prioritizes obstruction over good governance.

Senators are still impeding the nominations of Minnesota Supreme Court Justice David Stras and Michigan Supreme Court Justice Joan Larsen from even receiving a hearing after being nominated in early May. The reason? An archaic Senate rule known as the blue-slip. Elizabeth Slattery, Legal Fellow for the Heritage Foundation, explains this process and how it came to be:

“The use of blue slips developed out of the senatorial courtesy—the tradition that home-state senators will be consulted on selection of a nominee and may block objectionable nominees…This recognizes that home-state senators may be more familiar with the nominee and have better insights into the nominee’s suitability for the position.”

So, for a nominee to proceed to even receive a hearing, both senators from the nominee’s state must return their blue slips. Unfortunately, senators from Michigan and Minnesota have abused this procedural power and seem to ignore the praise from both the right and left for Stras and Larsen.

Take Justice Larsen, for example. The American Bar Association has awarded Justice Larsen with their highest rating and the dean of the University of Michigan Law School lauded her sound judgment and integrity while a member of the faculty. If that doesn’t suffice Senators Peters and Stabenow, Michigan Supreme Court Chief Justice Stephen Markman said Larsen will be missed by her colleagues with her “lifetime dedicated to legal scholarship, regard for our Constitution and abiding respect for the rule of law.”

As to why such a qualified nominee is not being permitted to move forward in the confirmation process, the Michigan senators released a joint statement claiming they were “listening to public input” and are in the process of reviewing their record to ensure their state “is served by highly qualified, fair and impartial judges.” Although the Senators have now been reported to have scheduled a meeting with Larsen, there is still no indication that they will return their blue slips.

Another qualified nominee, Justice Stras, received praise for his “outstanding qualifications” and temperament from his liberal colleagues on the Minnesota Supreme Court, but still faces no path forward to confirmation. Although Sen. Franken commended Stras for being a “committed public servant whose tenure as a professor…underscores how much he cares about the law,” he will not turn his blue slip in due to the Trump Administration’s “selection process.” This is a perfect example of how the blue slip enables Senators to play partisan politics under the guise of upholding tradition.

It’s time to end this procedural rule that has been abused and become obsolete. The Circuit Court of Appeals serves several states. There is no reason why one or two partisan senators can deny accomplished, competent nominees from serving on the federal court–depriving other states of highly-qualified judges. If the culture of D.C. is to truly change, these arcane rules in the Senate need to be eliminated.