Post submitted by HRC law fellow Cameron Redfern.
President Trump currently has 21 United States Court of Appeals and 107 United States District Court vacancies on his “to fill” list. A nomination by the President, confirmation by the Senate Judiciary Committee and the participation of Home-State Senators in the vetting process of new judges are all crucial aspects of filling these federal judicial seats. The blue slip process, a pivotal part of nomination and confirmation, is currently facing criticism by Republican senators who hope that President Trump faces little resistance in appointing new judges from a list prepared by the Federalist Society. The Human Rights Campaign urges the Senate Judiciary Committee to respect the blue slip process and for senators to withhold blue slips for nominated judges until they receive adequate information regarding nominees’ judicial records.
Despite a lack of codification into the Senate rules, the blue slip process has been used since the early 1900’s as a way to promote bipartisan support for judicial nominations. The process is utilized as a way to engage Senators from the opposite party of the President, in the vetting process of nominees. Traditionally, the Chair of the Senate Judiciary Committee notifies Home-State Senators of the nomination of a judge to a court in their state by sending them a blue slip. Home-State Senators then provide their feedback by returning the slip with a positive recommendation for confirmation, a negative recommendation for confirmation, or refusing to return the slip all together.
The Senate Judiciary Committee typically waits to receive two positive blue slips from Home-State Senators before commencing a confirmation hearing on behalf of a proposed judge at either the District Court or Court of Appeals level. This process ensures that the Administration consults with opposite party Senators before making nominations, or risk blue slips being withheld. Deference to Home-State Senators has not always been as respected – some Judiciary Committees have required only one positive slip to proceed, or in some instances Committees have proceeded without either blue slip. Former Senate Judiciary Chairs, Senator Joe Biden (D-DE) and Senator Orrin G. Hatch (R-UT), each expressed the importance of consulting with Home-State Senators through the Blue Slip Process prior to moving forward with confirmation hearings in letters to President George H.W. Bush and President William J. Clinton respectively.
Presently, Senate Republicans are advocating to ignore the blue slip process in order to keep Democrats from blocking President Trump’s nominees. Circumventing the blue slip process would directly disregard established senatorial practice and allow more anti-LGBTQ judges to receive appointments. It is clear that the fear of President Trump’s appointees being anti-LGBTQ is well founded following Justice Gorsuch’s clear opposition to the LGBTQ community in his dissent in Pavon v. Smith, in which he noted that post Obergefell there is no reason to conclude that a parentage regime which excludes same-sex parents violates the U.S. Constitution.
When respected, the blue slip process ensures that Home-State Senators are able to properly research and vet judicial nominees and provide feedback. It is necessary that Senators take the time to actively participate in this process. Democratic Senators have had recent success in blocking the nomination of Joan Larsen, a Federalist Society recommendation, to the U.S. Court of Appeals for the Sixth Circuit who has a record that raises red flags, in the areas of executive power and interest in corporations, as well as anti-LGBTQ sentiment. As of July 4, 2017, neither Senator Debbie Stabenow (D-MI) nor Senator Gary Peters (D-MI) have returned a blue slip on behalf of Larsen, thereby halting her confirmation. This success can continue with the Judiciary Committee’s respect for the blue slip process and investment by Democratic Senators in withholding blue slips until nominees are properly researched.
Many Senators have an understanding of the importance of bipartisan support for judicial nominees. Presently Senators from 18 states–CA, CO, FL, HI, IL, MA, MI, MN, MT, NC, OH, OR, PA, TX, VT, WA, and WI–use nominating commissions to screen candidates for federal court vacancies. The commissions, and the blue slip process, are vital in ensuring that individuals with proven animus for the LGBTQ community do not reach the federal Judiciary.