[Congressional Record Volume 147, Number 93 (Friday, June 29, 2001)]
[Senate]
[Pages S7185-S7186]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               SHINE SOME LIGHT ON THE BLUE SLIP PROCESS

  Mrs. FEINSTEIN. Madam President, we are all waiting for the majority 
leader to come to the floor and deliver the reorganization message. As 
part of that, I believe he is going to announce that Senator Leahy, the 
chairman of the Judiciary Committee, is going to make public the blue 
slip process.
  As a member of that committee, I would like to take a few moments and 
make a few comments about my experience with the blue slip--in essence, 
what I think about it.
  For those who do not know what the blue slip is, it is a process by 
which a Member can essentially blackball a judge from his or her State 
when that Member has some reason to do so.
  Why would I object so much? I object so much because there is a 
history of this kind of thing. Historically, many private clubs and 
organizations have enabled their board of directors to deliver what is 
called a blackball to keep out someone they don't want in their club or 
organization. We all know it has happened. For some of us, it has even 
happened to us.
  The usual practice was, and still is in instances, to prevent someone 
of a different race or religion from gaining access to that 
organization or club. This is essentially what the blue slip process is 
all about.

  The U.S. Senate is not a private institution. We are a public 
democracy. I have come to believe the blue slip should hold no place in 
this body. At the very least, the use of a blue slip to stop a nominee, 
to prevent a hearing and therefore prevent a confirmation, should be 
made public. I am pleased to support my chairman, Pat Leahy, and the 
Judiciary Committee in that regard.
  Under our current procedure, though, any Member of this Senate, by 
returning a negative blue slip on a home State nominee, or simply by 
not returning the blue slip at all, can stop a

[[Page S7186]]

nomination dead in its tracks. No reason need be given, no public 
statement need be made, no one would even know whom to blame. With a 
secret whisper or a backroom deal, the nomination simply dies without 
even a hearing. This is just plain wrong.
  I have watched the painful process over the last 9 years. During 6 of 
those years, the blue slip itself contained the words, ``no further 
proceedings on this nominee will be scheduled until both blue slips 
have been returned by the nominee's home State Senators.'' As a result, 
I saw nominees waiting 1, 2, 3, even 4 years, often without as much as 
a hearing or even an explanation as to why the action was taken. These 
nominees put their lives on hold. Yet they never have a chance to 
discuss the concerns that may have been raised about them. These 
concerns remain secret and the nomination goes nowhere.
  As a member of the Judiciary Committee, I believe our duty is either 
to confirm or reject a nominee based on an informed judgment that he or 
she is either fit or not fit to serve; to listen to concerns and 
responses, to examine the evidence presented at a hearing, and to have 
a rationale for determining whether or not an individual nominee should 
serve as a district court judge or circuit court judge or even a U.S. 
Supreme Court Justice. That duty, in my view, leaves no room for a 
secret block on nominees by any Member which prevents their hearing and 
confirmation.
  I believe in the last three Congresses, based on information I have 
been able to come upon, that the blue slip has been used at least 21 
times. Consider this: An individual graduates college with honors, 
finishes law school at the top of the class; he or she may even clerk 
for a prestigious judge or join a large law firm, or maybe practice 
public interest law or even serve as staff of the Judiciary Committee. 
In fact, a nominee can spend years of his or her life honing skills and 
developing a reputation among peers, a reputation that finally leads to 
a nomination by the President of the United States to a Federal court.
  This must be the proudest day of his or her life. Then the nominee 
just waits. First for a few weeks. He or she is told things should be 
moving shortly but the Senate sometimes takes a while to get moving. 
Then the months start to go by, and maybe friends or associates make 
some inquiries as to what could be wrong. They don't hear anything, so 
the nominee is told just to wait a little longer; things will work 
themselves out.
  I have had nominees call me and say: I have children in school. We 
need to move. Shall we do it? I don't know what to do. Do I continue my 
law practice?
  A year passes with still no hearing or explanation; finally, the 
second year, and maybe the third, or even the fourth, if one is 
``lucky'' enough to be renominated in the next session. The time goes 
by without so much as a word as to why the nomination has not moved 
forward.
  Simply put, the nominee has been blackballed by a blue slip, and 
there is nothing that can be done about it--no one to hold accountable.
  I believe that if a Member wants to use a blue slip to stop a nominee 
from moving forward, that blue slip should be public. And I also 
believe that the Member should be prepared to appear before the 
Judiciary Committee and explain why the Senate should not consider the 
nominee and hold a hearing.
  Making the blue slip public is no guarantee that a nominee will 
receive a hearing. It is no guarantee that an up or down vote will ever 
be held. But at least the nominee will have the chance to see who has 
the problem, and what that problem is. In many cases, a nominee may 
choose to withdraw. In others, perhaps a misunderstanding can be 
cleared up. Either way, the process will be in the open, and we will 
know the reasons.
  I believe that many members of this Senate did not even realize they 
held the power of the blue slip until just recently.
  In my view, the rationale behind the blue slip process is faulty. The 
process was designed to allow home state Senators--who may in some 
instances know the nominee better than the rest of the Senate--to have 
a larger say in whether the nominee moves forward. More often than not, 
however, this power is and will be used to stop nominees for political 
or other reasons having nothing to do with qualifications.
  As a matter of fact, the Member who uses the blue slip, who doesn't 
send it in, or sends it in negatively, may never have even met the 
nominee.
  If legitimate reasons to defeat a nominee do exist, those reasons can 
be shared with the Judiciary Committee in confidence, and decisions can 
be made based on that information--by the entire Committee.
  The blue slip process as it now stands is open to abuse.
  I would join with those--I am hopeful there are now those--on the 
Judiciary Committee who would move to abolish the blue slip.
  Before I conclude, I want to read from a recent opinion piece by G. 
Calvin Mackenzie, a professor at Colby College and an expert on the 
appointment process. In the April 1, 2001 edition of the Washington 
Post, Mackenzie wrote:

       The nomination system is a national disgrace. It encourages 
     bullies and emboldens demagogues, silences the voices of 
     responsibility, and nourishes the lowest forms of partisan 
     combat. It uses innocent citizens as pawns in politicians' 
     petty games and stains the reputations of good people. It 
     routinely violates fundamental democratic principles, 
     undermines the quality and consistency of public management, 
     and breaches simple decency.

  I find myself in agreement with every word in that quote. It is quite 
an indictment of our nominations process. On both sides of the aisle, 
we hear: Well, they did it, so we are going to do it. Well, they 
blocked our nominee, so now we will block their nominee.
  I don't believe that has any merit whatsoever. I believe at some 
point we have to stop this cycle. At some point, nominees have to come 
to the Senate Judiciary Committee, go promptly or as promptly as they 
can go to a hearing, have the questions asked, and we do our duty which 
we took our oath to do, which is to make the judgment whether that 
nominee qualifies to be a Federal court judge or district court judge.
  I make these remarks to say that this is one Member of the Judiciary 
Committee who will happily vote to do away with the blue slip.
  Thank you very much. I yield the floor.
  Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DASCHLE. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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