(Bloomberg) -- The Senate blue slip is dead for circuit court nominees. That’s bad, if not unexpected, news.
The blue-slip process was one that gave senators an effective veto over nominees from their own states; the name comes from the blue slips of paper distributed to those senators by the Judiciary Committee, which, if not returned, would stop committee consideration of the nominee. Blue slips (which were also used to submit a favorable view of a nominee) have had a complicated history; the home-state veto certainly isn’t in the Constitution, but it also doesn’t come down to us from the early days of the republic. Nevertheless, it’s been more or less an enforced tradition in Congress.
David Lat argues in the New York Times that the blue-slip process, along with the judicial filibuster before that practice was abandoned in 2013, have introduced delays and left too many empty seats on the federal bench. Now, he says, President Donald Trump and future presidents will “enjoy a greater ability to appoint judges” than their predecessors did.
True enough, at least during periods of unified party control of the White House and the Senate. But those bodies have been in different partisan hands often enough in recent years: 1987-1988; 1993-2000; parts of 2001 and all of 2002; 2007-2008; and 2015-2016. In most of those years, despite the filibuster and (sometimes) blue slips, judges were nominated and confirmed, but the process became steadily worse over time until, in Barack Obama’s last two years, Mitch McConnell and Republican senators refused to even consider most of the president’s nominees.
In other words, the world we’re entering into is one of full presidential control some of the time, and stalemate and gridlock the rest of the time. The capacity for the Senate as a whole or independent senators on their own for individual meaningful action will atrophy.
There was a better way. It involved something that Lat and other majoritarians don’t seem to consider: the value of compromise.
That’s something both sides, especially the Republicans, have lost. It involved use, but not abuse, of such anti-majoritarian devices as filibusters and blue slips, and it involved presidents who were willing to work with senators to find some workable solution. In other words, minority-party or minority-opinion senators might attempt to block single nominees they found particularly objectionable, but they didn’t attempt to blockade positions, rejecting any possible opposite-party nominee in hopes of keeping a position vacant until the next election. Democrats (and some Republicans) defeated Robert Bork in 1987 by a majority vote, and then confirmed a somewhat more moderate selection, Anthony Kennedy, in Ronald Reagan’s final year in office. Democrats filibustered specific George W. Bush nominees, but they were open to other people they considered less extreme.
Republicans, however, acted in the George W. Bush years as if use of the filibuster — not just abuse, but any use at all — was illegitimate. More to the point: They decided that bargaining and compromise over judicial seats was illegitimate. And so advice and consent have died, and with it the procedures that pushed everyone to work together.
Perhaps it was inevitable in a partisan age. But we’re left with no process, and no training and skills, to break the deadlock the next time the Senate and the president are divided by party. Will 51 Democrats, if we have that, allow Trump to confirm any judges at all in 2019 and 2020? Even if they do, there’s no reason at all to expect Republicans to act any differently the next time there’s a Democratic president than they did when Obama was in office.
It’s not that the blue slip, or even the filibuster, was all that wonderful. And we hardly want to sugarcoat the past, when Senate procedures were used to block even the rudiments of democracy for decades. But at its best there really was something wonderful — extraordinary, really — in the ability of politicians from very different places, from different parties, and holding different ideas to work out compromises. We shouldn’t be so quick to give up on it, because it’s an essential part of democratic government. Sometimes even more important than making sure that the winners of one election get whatever they want.
1. Very smart item from Julia Azari at Mischiefs of Faction about Don Blankenship, the criminal justice system and political participation.
4. Andrew Rudalevige at the Monkey Cage on why it wouldn’t have made any legal difference had the Iran deal been a treaty ratified by the Senate.
7. And Jennifer Bendery profiles Paulette Jordan, an Idaho gubernatorial candidate from a different type of political dynasty.
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