[Congressional Record Volume 163, Number 186 (Tuesday, November 14, 2017)]
[Senate]
[Pages S7207-S7208]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                          Blue Slip Procedure

  Mr. LEE. Mr. President, I wish to speak for a few minutes about the 
Senate blue slip.
  As my colleagues know, when the President nominates someone who will 
be processed by the Senate Judiciary Committee, home State Senators 
receive a letter informing them of the nomination and asking whether 
they approve of the nominee in question. The letter is printed on blue 
paper--thus the name. That is why we call it the blue slip.
  The question on the table is, What should happen if one or both of 
the home State Senators do not approve the nomination?
  In previous years, the chairman of the Senate Judiciary Committee has 
treated the blue slip as a de facto veto, but that is not how the blue 
slip originally functioned. Between 1917, when the blue slip was first 
used, and 1955, the blue slip was never treated as a veto. Instead, it 
gave the home State Senators a special ability to state their 
objections about a nominee during a hearing. The committee could then 
decide how to proceed.
  When James Eastland, a Democrat from Mississippi, became chairman of 
the Senate Judiciary Committee in 1955, he took a different approach. 
Why did Eastland implement this new policy? No one knows for sure, but 
one scholar has written that Eastland, an ardent segregationist, might 
have been trying in part to ``keep Mississippi's federal judicial bench 
free of sympathizers with Brown v. Board of Education.''
  We are evaluating the strength of a custom. It is a custom of 
relatively recent vintage, and its origin story surely matters in how 
we evaluate its ongoing relevance to the Senate today.
  Eastland kept that policy in place for the whopping 22 years he 
served as chairman of the Senate Judiciary Committee. When Senator Ted 
Kennedy took over from Eastland in 1979, he immediately changed the 
status and functioning of the blue slip procedure. As the Congressional 
Research Service reports, Kennedy determined that the blue slip ``did 
not have the same power to automatically stop committee action as 
before.'' Rather, Kennedy affirmed his right to move forward with a 
nomination regardless of the blue slip.
  To make a long story short, since 1955, there have been eight 
chairmen of the Senate Judiciary Committee, including Eastland. By my 
count, two have treated the blue slip as a veto; the other six have 
either said the blue slip was not a veto or have at least not treated 
the blue slip as a veto.
  What to make of this history? For one thing, we often hear that the 
blue slip is a 100-year-old tradition. In my view, it should be equally 
powerful to note that the blue slip originated 128 years after the 
first Congress. That is

[[Page S7208]]

part of the Senate's history, too, and that, too, shouldn't be ignored.
  But there is an even more fundamental point, and that is that even in 
modern times, there isn't exactly an unbroken and lengthy practice of 
treating the blue slip procedure as if it were a veto. The practice is 
even sparser when you consider that the blue slip takes on a different 
function depending on whether the President's party is in control of a 
majority of the seats in the Senate. When the President's party does 
not control the Senate, the blue slip is an efficient way to negotiate 
with the opposition party, which, after all, can vote down the 
President's nominees.
  When you look at the relevant circumstances, here is what you find: 
The blue slip has been treated as a veto for a grand total of 28 years 
when the President's party controlled the Senate. Fourteen of those 
years occurred under Senator Eastland, who was waging a personal 
vendetta against civil rights, including with respect to judicial 
nominees processed by the Judiciary Committee.
  So if the Senate blue slip procedure is not a veto, what function 
should it play? As I have said, the blue slip is the chairman's 
prerogative. But if I were advising the chairman, here is what I would 
say: The blue slip should not be a veto of a nomination so long as the 
executive branch has sufficiently consulted with the home State 
Senators in advance of making this nomination. That rule is consistent 
with the appointments clause of the Constitution, which establishes 
joint shared responsibility for appointments to Federal office.
  It is important to note that, contrary to what some of my colleagues 
have suggested, the appointments clause does not grant individual 
Senators the right to pick nominees, whether processed by the Judiciary 
Committee or otherwise.
  That rule is also consistent with the best reading of Senate custom. 
It is roughly consistent with the practice that unfolded between 1917, 
when the blue slip was first adopted, and 1955, when Senator Eastland 
brought about some changes. It has at least as much support in modern 
practice.
  What counts, then, as sufficient consultation? It is hard to come up 
with a precise rule, with a single mathematical definition, but in my 
view, the White House has an obligation to let the home State Senators 
know whom the White House might be considering for a vacancy. The home 
State Senators have the right to review the candidate's record and 
share any concerns they have about the candidate. Qualifications count. 
Character counts. Home State ties and ties to the community count. I 
don't think home State Senators have the right to demand someone who 
shares their particular approach to the law necessarily, but they do 
have the right to insist that the candidate believe in the law as 
something independent from politics, particularly where the candidate 
is being nominated to a life-tenured position in an article III court.
  There is a final point to make. As we move forward, my colleagues 
across the aisle will charge us with hypocrisy just as predictably as 
our prediction that the Sun will come up in the east tomorrow. There 
are two things to say about this.
  First, my approach to the blue slip has remained consistent since I 
took office. I have followed the approach that I have just described.
  Second, until 2013, the blue slip was a lot less important because 
the minority party could filibuster. That is no longer an option 
because the Democrats changed the rules in 2013. When you change the 
rules--the actual written protections upon which we rely--when those 
are changed, then you are left reliant on customs. Customs can always 
be changed. In this case, the custom we are dealing with isn't even a 
particularly strong one. It is not even a particularly long-lasting 
one.
  More broadly, in the Senate we are trying to figure out how to 
process the President's nominees. We have improved the pace of 
confirming nominees recently, but we are still significantly behind in 
modern historical terms from where we should be and from where other 
Senates have been during the first year of other Presidential 
administrations. We need to find a solution to improve the pace, 
including by remaining in session longer so that we can complete this 
important work.
  It is essential that we understand the difference between, on the one 
hand, the Constitution and, on the other hand, the rules; and, on the 
one hand, the rules and, on the other hand, the custom. There is a 
significant difference here. In this case, the custom isn't even all 
that long, not nearly as long as some have suggested, and it certainly 
hasn't been consistent. We can do better, and do better we must.
  I yield the floor.
  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. DAINES. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.