June 16, 2017; Iowa Labor News
Court appointments matter. It took the ruling of only one federal court judge in Hawaii to bring a halt to the first Muslim travel ban. The contested rulings of lower federal court judges brought us to the Supreme Court’s decisions on marriage equality and women’s rights to make health care decisions. While the final rulings on these well- known issues rested with the Supreme Court, many more rulings determined in federal district and circuit courts are now the law of the land.
The federal judiciary touches upon many aspects of the nonprofit sector. From equity issues to employment law, from the quality of the air and water to consumer protections, the federal judiciary is a key component of the system of checks and balances in this country. The judges who sit on these district and circuit courts are approved by the Senate and hold lifetime appointments, just like the nine who serve on the Supreme Court. The one thing that interrupts this process is the “blue slip.”
According to the Brookings Institution, “‘Blue slips’ are blue-paper forms that Senate Judiciary Committee chairs send to home-state senators asking if they approve of judicial nominees in their states. During the Obama administration, a Democratic or Republican negative or unreturned blue slip killed the nomination.”
There are many who disagree with maintaining this Senate tradition. In a summary of her article in a Heritage Foundation publication, Elizabeth Slatterly offers the following:
President Trump has more than 120 lower court vacancies to fill with nominees who must be confirmed by the Senate Judiciary Committee. The blue slip process involves asking home-state Senators to approve or disapprove appointees from their states. Blue slips have had various degrees of efficacy in blocking judiciary nominations throughout their 100-year history. [Senate Judiciary Committee Chairman Chuck] Grassley must ensure Senate Democrats do not abuse the blue slips process to prevent the confirmation of constitutionalist judges. His options include weighing blue slips less heavily in the confirmation process; giving greater weight to blue slips for district court nominees; utilizing time limits; or eliminating the blue slip process entirely.
Texas Senator Ted Cruz (R-TX) told The Hill that “if Democrats shut down qualified nominees to the courts, then there’s a ‘real possibility they will lose their ability to do so.’” Senator Dianne Feinstein (D-CA) disagreed, saying, “The blue-slip rule has always applied to circuit court nominees and ‘there’s no reason to change that longstanding precedent’ now.”
The Republican leadership has pushed to diminish blue slips’ influence as a way of ensuring that President Trump’s federal judicial nominees are all voted into lifetime positions. In a column for the Des Moines Register, Grassley declared:
For nearly a century, the chairman of the Senate Judiciary Committee has brought nominees up for committee consideration only after both home-state senators have signed and returned what’s known as a “blue slip.” This tradition is designed to encourage outstanding nominees and consensus between the White House and home-state senators. Over the years, Judiciary Committee chairs of both parties have upheld a blue-slip process, including Sen. Patrick Leahy of Vermont, my immediate predecessor in chairing the committee, who steadfastly honored the tradition even as some in his own party called for its demise. I appreciate the value of the blue-slip process and also intend to honor it.
With the contentious and partisan nature of Senate approval for the Trump administration’s nominees and appointments writ large, the approval of federal judges to lifetime seats may be receive even more attention. The makeup of the Senate almost ensures that nominees who are voted out of the Judiciary Committee will receive the needed 51 votes for approval in the Senate, especially since the filibuster is no longer an option. But if blue slips are honored by Grassley, they could stop a nominee from advancing to a hearing in the Judiciary Committee.
As the nonprofit sector considers its future, many of the issues that it addresses will also be addressed in the federal courts. Most will never make it to the Supreme Court, so paying attention to who sits in judgment on the lower courts becomes even more important. Perhaps the most important legacy of this or any administration is not in the laws they pass, but the judges whom they appoint for lifetime seats on the federal courts, who will be in place long after the President and Senators who nominate and approve them. The practice of using blue slips to halt a nomination is, perhaps, now more important than ever before.—Carole Levine