In the comments to my recent judicial nomination posts, some have wondered why I insist on distinguishing between blue slips and filibusters. So I thought I’d quickly address this point before posting on how to end the obstruction of judicial nominees. The reason for distinguishing between filibusters and blue slips is that these two modes of obstruction — both of which I would like to see abolished — operate quite differently. Put simply, the costs and benefits of exercising each method of obstruction are quite different, and this affects how and when each is used — and affects the likelihood of reforming or eliminating either.
Here are some key differences. Under Senate tradition, the Senate Judiciary Committee will not proceed with a nominee unless both home state Senators return blue slips on that nominee. If a slip is withheld, the nomination will not move. This is justified on grounds of “courtesy” to the home-state Senator and is supposed to encourage the White House to consult with home state Senators before making nominations. For the record, neither party has been particularly consistent in its enforcement of the rule, or in consultation, but this is the general tradition. In practice, the blue slip tradition gives a single Senator — but only the home-state Senator — the ability to block a judicial confirmation. Cooperation of the Senator’s caucus is not required. Thus, Jesse Helms could hold up nominees to what are considered North Carolina seats on the Fourth Circuit in retaliation for the Senate’s failure to confirm Terence Boyle and Carl Levin could hold up nominees to Michigan seats on the Sixth Circuit in retaliation for the Senate’s failure to confirm Helene White. Blue slips only work if the Senate Judiciary Committee Chairman observes them — and there is little move to get rid of blue slips in the Senate because each Senator likes the idea of being able to control nominations from his or her state.
For a filibuster to block a judicial nominee, more than 40 Senators must agree to prevent a vote on confirmation of a nominee. thus filibusters require a degree of cooperation the blue slips do not. This makes them more difficult to use and makes them, by their nature, more inherently partisan. Whereas a home-state Senator may use the blue slip tradition out of pique or in an effort to defend his or her prerogative — and can do so alone — a single Senator cannot cause a filibuster. This is why filibusters are more rare and, until ten years ago, had never been used to block the confirmation of a nominee.
Another key difference is that filibusters are more public — and thus risk greater political backlash — than do blue slips. In addition, blue slips (and the preceding consultation which is supposed to occur) occur in private, and typically get little attention. Moreover, if a home-state Senator’s use of a blue slip is disclosed, this may actually result in political benefits back home, as the Senator may be seen as protecting the state’s interests. Filibusters of judicial nominees, on the other hand, require public votes. (For more on the distinctions between these forms of obstruction, see this old post.)
For what it’s worth, I oppose both filibusters and blue-slips. I think all judicial nominees should get timely up-or-down votes, and I think the Senate should adopt a rule to this effect. Yet I also think blue-slips are more ingrained in Senate culture — and more fiercely defended by Senators as a home-state prerogative (much like Senatorial involvement in the selection of district court nominees). If this means blue slips can’t be eliminated, I would at least require that their use be disclosed (much as I think the use of holds on any nomination should be disclosed).