Give Blue Slips a Pink Slip

(Bloomberg View) -- Some government traditions with no legal basis -- pardoning turkeys, for example -- are silly but harmless. Others are not. Among them is an arcane, century-old practice known as “blue-slipping,” under which a single senator can block a president's judicial nominee. The country would be better off without it.

When the president sends a candidate for the federal bench to the Senate, the chair of the Judiciary Committee sends the two senators from the nominee's home state a blue slip of paper, containing two boxes -- approve and disapprove. Allowing the senators to register their views is both a courtesy and an opportunity for the chair to learn something from the nominee's fellow residents. Custom holds that the committee doesn't proceed with a hearing until both slips, with either box checked, are returned.

At least that's the way it's supposed to work. In recent years, however, senators have increasingly registered their disapproval of nominees by simply refusing to return the slip -- thus blocking a hearing altogether. This gives senators a veto over judges from their home states. Senators can keep the blue slip for any reason: as leverage in a horse trade with the White House, to leave the seat open for the next president, to carry out a personal grudge.

Over the decades, committee chairs have occasionally proceeded to hearings without the slips, or proceeded if just one slip was returned. More often the informal rule has been strictly followed: No hearings without both slips.

During Barack Obama's presidency, Judiciary Chairman Patrick Leahy upheld the rule, in some cases forcing the White House to nominate conservatives, and in other cases leaving long vacancies. One seat, in North Carolina, remained vacant for the entirety of his presidency and still is today.

Refusing to allow a hearing on a judicial nominee -- whether for a district court or the Supreme Court -- is a dereliction of duty. Nevertheless, having seen Republicans use the blue slip effectively, Democrats are threatening to follow suit.

That would be unfortunate. Yes, blue slips effectively serve as a legislative check on executive power, at a time when it surely needs checking. But the proper place for senators to fulfill their constitutional duty of oversight is not on blue slips of paper, but with careful scrutiny in public hearings.

--Editors: Francis Barry, Michael Newman

To contact the senior editor responsible for Bloomberg View's editorials: David Shipley at davidshipley@bloomberg.net.

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