First Filibusters, Now Blue Slips: A New Fight over Judicial Nominations

Elizabeth Slattery / Jonathan Formichella /

Senate Democrats triggered the “nuclear option” to effectively eliminate the filibuster for executive and judicial nominations last year. Now another Senate tradition may be next up on the chopping block: the use of “blue slips.”

Senate Judiciary Committee chairman Patrick Leahy (D–VT) stated, “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.” But abuse is in the eye of the beholder, and some on the left are calling for Democrats to do away with this practice.

Since 1917, the Senate Judiciary Committee has used blue slips—letters from the chairman to the Senators from a nominee’s home state asking them to sign off on the nomination—as part of its process for evaluating federal district and appellate court nominees. If the home-state Senators refuse to assent to the nomination, it does not move forward in the Committee.

Thus, blue slips can be used to prevent controversial nominations or simply to slow down the pace of confirmations. In recent months, Georgia Senators Saxby Chambliss (R) and Johnny Isakson (R) have come under fire for supposedly refusing to return blue slips in order to stonewall a nomination to the Eleventh Circuit. Now some are weaving the use of blue slips into the narrative of “historic GOP obstructionism” on judicial nominations. But as a new Heritage chart shows, President Obama had nearly twice as many judicial confirmations in his first year after re-election as President Bush did.


Like the filibuster, the practice of using blue slips is not constitutionally mandated. Article I, Section 5, clause 2 indicates, “Each House may determine the Rules of Proceedings.” It may, however, be shortsighted if Democrats eliminate the use of blue slips. As Senate Minority Leader Mitch McConnell (R–KY) pointed out following the filibuster showdown in November, “Some of us have been around long enough to know the shoe is sometimes on the other foot.” Senate Democrats may someday regret their decision to cripple the minority party when they themselves are in the minority.

Jonathan Formichella is currently a member of the Young Leaders Program at The Heritage Foundation. For more information on interning at Heritage, please click here.