President Trump is frustrated, and understandably so. His acting U.S. attorney in New Jersey, Alina Habba, cannot win confirmation. The reason is that both New Jersey senators, Cory Booker (D) and Andy Kim (D), oppose her nomination. They refuse to return what is known as a blue slip to indicate their consent to the nomination’s proceeding ahead.
The blue slip is a century-old tradition in the Senate Judiciary Committee requiring both of a state’s senators to consent to the president’s nomination of district court judges, U.S. attorneys, and U.S. marshals that would serve in their state. And although it doesn’t appear in the Constitution, nor is it codified in Senate rules, it is a tool long-used by senators to assert some control over the federal law enforcement presence in their home state.
Senators from both parties want to keep the blue slip because it represents a massive amount of leverage. If senators have a gripe over any nominee for any reason, they can scuttle the nomination. It makes sense as a matter of human nature why individuals possessed of that power would not want to relinquish it. More coarsely, senators want a say in the prosecutor who indicts them, the judge who presides over their trial, and the marshal who escorts them to prison. For example, former Sen. Robert Menendez (D-N.J.) got off when he faced charges in New Jersey but was convicted when later indicted in New York.
Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) reformed this process in 2017, ending the blue slip veto for circuit court nominees and returning this Senate tradition to its historical roots. After all, there’s no reason one state’s senators should have veto power over an entire circuit court spanning several states. As a result, Trump was able to improve the notorious Ninth Circuit dramatically. Senators from California, Hawaii, Nevada, Oregon and Washington no longer have the power to entrench control of that court.
In Trump’s second term, Democrats have indicated they have little interest in cooperating with the White House, bringing nominations to a crawl in the Senate. They are aided by a select few Republican senators who don’t want to work five days a week or cancel extended recesses to confirm Trump’s team who are needed to enact his agenda.
This slow-walking of nominees turned the gaze of some to eliminating the blue slip, a change many Republicans tried but failed to make when I worked for Chairman Grassley during Trump’s first term. However, thanks to Chairman Grassley, even in the face of Democratic walk-outs, the president’s judicial nominees are being confirmed. No one can doubt Grassley’s record in confirming the president’s judges — a historic number in his first term, including multiple Supreme Court justices, and many more this Congress. As he has stated repeatedly, Grassley wants the president’s nominees confirmed.
The issue of blue slips, however distasteful, is sacrosanct to a few Republican senators. Sen. Thom Tillis (R-N.C,), a member of the Judiciary Committee, stated unequivocally that he will not support any nominee unless that nominee’s home-state senators returned their blue slips. Without Tillis, Republicans do not have the votes on the committee to proceed to a floor vote. Other Republican senators have made similar pronouncements. That is the end of the ball game on blue slip elimination, at least for the remaining 16 months of this Congress.
While the filing of a discharge petition on a nominee is an option to bring him or her to the floor outside of the committee process, that would require 60 votes, meaning substantial support from Democrats, which isn’t going to happen.
The chorus of the history of our republic is “The Senate is behind the times.” Reforms will happen — and they may happen soon to the blue slip, but those reforms unfortunately won’t be now. In the numbers game of the Senate, the president pro tempore — Grassley’s other title — has been around long enough to count votes a time or two. Until Republicans build a large enough advantage in the Senate, things won’t change thanks to a few remaining holdouts. Republicans should focus on getting things done with the system they have now, and electing a larger, more functional majority next November.
Michael Zona is a Partner at Bullpen Strategy Group and formerly served as communications director for Sen. Chuck Grassley of Iowa.
