by Jeffrey Toobin
The Senate transformed President Obama’s ability to win confirmation for his judicial appointments last week by invoking the nuclear option—a ban on filibusters against nominees, apart from Supreme Court justices. With that, Democrats effectively lowered their threshold for victory from sixty votes (the number needed to cut off debate) to a simple majority of fifty-one. (Fifty-five Senators currently vote as Democrats.)
But Obama faces one remaining barrier to his ability to fill vacancies in the federal courts: an arcane senatorial tradition known as the blue slip.When a Presidential nominee for a judgeship is referred to the Judiciary Committee—the start of the confirmation process—the two senators from the nominee’s home state are informed by a letter on light blue paper. The letter invites each senator to check a box indicating whether he or she approves or disapproves of the nomination. Blue slips are not authorized or mentioned in the Constitution, in federal law, or even in the rules of the Senate.
They are nothing more than a tradition, which has been in use off and on (mostly on) since the early twentieth century. (The Congressional Research Service put together ahistory of the blue slip in 2003.) “It appears to have started as an information-gathering tool for the Judiciary Committee, but it evolved into something like a veto power,” Sarah Binder, a congressional scholar at the Brookings Institution, told me.
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