Preet Bharara:
From Cafe and the Vox Media Podcast Network. This is Stay Tuned in Brief, I’m Preet Bharara. There’s a policy that every modern US attorney and federal judge is familiar with, and it’s one that most members of the public probably haven’t heard of. It’s called the blue slip rule, and it gives United States Senators the power to veto the nomination of certain federal judges and prosecutors in their home states. It’s more of a tradition than a formal policy. The words blue slip don’t appear in any law and certainly not in the constitution, but it’s one that has allowed individual senators to exert important influence over the federal judiciary. Some consider the custom a valuable check on the power of the president. Others think it’s anti-democratic and slows down the confirmation process. That debate is no longer academic. The Senate Judiciary Committee under the leadership of Dick Durban is now reportedly considering getting rid of blue slips. My guest this week is Leigh Anne Caldwell. She’s a reporter at the Washington Post where she focuses on congress and politics. She recently co-authored an article on the state of blue Slips. Leigh Anne, welcome to the show,
Leigh Ann Caldwell:
Preet. Thanks for having me.
Preet Bharara:
So I spent four and a half years on the Senate Judiciary Committee working for Chuck Schumer, and I had as one of my responsibilities, the duty of either submitting or not submitting his blue slip, at his direction of course, but I’m the one who checked the box based on his direction. What the hell is the blue slip policy?
Leigh Ann Caldwell:
Well, as you, I’m sure, know very well, the blue slip policy happens when, like you said in your intro, it is really just a Senate tradition and it’s a courtesy. And if there is a judge who is nominated from let’s say the state of Nebraska, then the two senators from that state are to provide to the Congress, to the Judiciary Committee what is known as a blue slip. It is an acknowledgement that they are aware of the nomination. This is actually interesting. It used to be an acknowledgement that they have been told about the nomination and they offered advice on the nomination, and it would not matter if they agreed or disagreed with the nomination. But that is what it has really turned into, instead of a formality of ensuring that the administration has notified the senators from that state about that nominee, it is turned into a sign of acceptance and approval of that nominee. And that’s where it’s getting politically tricky and politically complicated, but essentially a blue slip is a senator from a state saying, “Yes, this nominee is from our state. You may proceed.”
Preet Bharara:
And I can, by the way, confirm for folks that the blue slip is in fact, at least during my tenure, blue. They use blue sheets of paper. I don’t know why it’s blue. It could be red, it could be green, I don’t don’t know. But they tend to be blue. This issue really only comes up, so people understand, in states where there are one or both senators from the party other than the presidential party. Correct?
Leigh Ann Caldwell:
Correct.
Preet Bharara:
And you can basically pocket veto a nominee simply by not returning the blue slip. Right?
Leigh Ann Caldwell:
Correct. Unless, which you’re probably going to get here very soon, unless the judiciary Committee, the chair of the judiciary committee decides to ignore the absence of a blue slip.
Preet Bharara:
Right. And as I said in the intro, there’s no policy. It’s not in a rule, it’s not in the Constitution, obviously it’s not in a statute. The chair of the Senate Judiciary Committee, whether it’s a Democrat or Republican can, at any time, honor the blue slip process or not. Right? There’s no rule change necessarily that has to be adopted. They can just do it.
Leigh Ann Caldwell:
Yeah, correct. It’s tradition.
Preet Bharara:
And in fact, that did happen during the Trump administration under Senator Grassley’s leadership of the committee because once upon a time, and when I was in the Senate, the blue slip policy applied not just to US attorneys and district court judges and some other nominees, but also to circuit court nominees for the federal bench. Now that’s a little bit more complicated because circuit court nominees, whether it’s the third circuit or the second Circuit or the ninth Circuit, those appellate courts encompass more than one state. So you’re sometimes talking about a blue slip policy that implicates multiple senators from multiple states having to agree with the nomination by the White House. What was the reaction to the abolition of the blue slip process for circuit court nominees?
Leigh Ann Caldwell:
Oh, Democrats were furious. You can look at blue slips in the bigger picture of the Senate confirming judicial nominees. When the Senate Judiciary Committee under Senator Grassley during the Trump administration started to ignore the Senate tradition of blue slips, this had also happened when the threshold to confirm judges had decreased previously from 60 to 50, and then under the Trump administration for Supreme Court judges, it decreased from 60 to 51, a simple majority.
Preet Bharara:
That’s because of the getting rid of the filibuster.
Leigh Ann Caldwell:
Correct. And for these judicial nominees. And so when Grassley said that he was no longer going to honor the tradition of blue slips, Democrats were furious because this was their only backstop really, to stopping some of these nominees that they really didn’t approve with, that they thought were way too extreme for the bench. And Senator Grassley did away with it. And so with a simple majority being able to pass judicial nominees with the degradation of blue slips for the circuit courts, Democrats really lost a lot of power and helping to have some input on the makeup of the bench.
Preet Bharara:
So here’s an issue that comes up all the time with Congress, and it’s confusing to people, and it’s frankly confusing to me. When Democrats are in power they like certain authorities, when Republicans are in power they like certain authorities. And this argument that people make that what’s good for the goose is good for the gander, seems to be at play here again, whether it’s the filibuster or it’s removal of people from committees. And here the blue slip rule, when Democrats had the majority and there was a Republican president they liked the blue slip rule. Cory Booker is on record as saying he was actually a very important check on Donald Trump appointing improper and unacceptable judges in his state, democratic state of New Jersey. So now the shoe is on the other foot. Can you make sense for people of why they’re flipping and the flopping?
Leigh Ann Caldwell:
Yeah. No, not really. I mean, it’s just when people have power, they want to exert as much power as possible and they want to get as much done as possible and so a lot of times people just think in the moment. They have two years, they know they have two years of judicial nominees with Biden in the White House with a Democratic Senate. So if the Republicans are going to politicize and to, what they say, abuse the blue slip process, then they threaten to get rid of it. But as we all know, Democrats are not always going to control the Senate and there is not always going to be a Democrat in the White House. And so the age of retribution is alive, very alive in these moments.
Preet Bharara:
And some of the politics here or the foresight here, does it have to do with the fact that Democrats are worried that as soon as Republicans get control of the Senate, they’re going to abandon the blue slip policy anyway?
Leigh Ann Caldwell:
Yeah.
Preet Bharara:
So why not do it first and have the benefit of that flexibility for the last two years of the Biden presidency? Is that what’s going on?
Leigh Ann Caldwell:
Yeah, that’s part of what’s going on. Yes, that is absolutely true. Republicans got rid of blue slips for the Circuit Court Judges. They got rid of the filibuster for Supreme Court nominees after Democrats got rid of the filibuster for District and Circuit Court nominees. So yes, there is that fear. This is kind of one the last remaining check, but also I think that some people are aware of that, some people are trying to preserve, and it seems to be the institutionalists that tend to try to preserve these traditions when senators who hadn’t been around as long or really the progressive outside groups are really pushing Senate Democrats to do away with this. They think that the other side’s going to do it, so they might as well get it done first.
But the thing is here is the first two years of the Biden White House, the Senate Democrats, even with an evenly divided 50 50 Senate, they confirmed a lot of judges, 97 judges, and it was on track. They actually confirmed more judges than Donald Trump did in his first two years in office. And so while this debate is happening, it’s not like, at this point, there has been a huge record of obstruction by Republicans at this point, but they fear that since there’s not going to be a lot happening in the Senate other than judicial nominations, that this is where Republicans will choose to fight.
Preet Bharara:
Where’s the pressure coming from, if at all, on Chairman Durbin? Is it coming from within the committee, within the caucus, from the general public, from activist groups, advocacy groups? Where’s it coming from?
Leigh Ann Caldwell:
Advocacy groups. Some of these groups who have really tried to focus on the makeup of the court, judicial nominations, are really pressuring Senator Durban to do this. A lot of these groups, this is also political campaign money as well. These groups and the people who support these groups also, this is the base of the party, and so that’s where the pressure is coming from.
Preet Bharara:
So what do you think is going to happen and what’s the allocation of support versus disagreement with getting rid of the blue slip policy on the Democratic side?
Leigh Ann Caldwell:
Right now, Senator Durbin says that he wants to keep it. He has issued a warning shot to his colleagues, Republicans, saying, “Don’t abuse this. I want to keep this blue slip tradition. Please don’t take advantage of it and force us to act.” So I think we’re going to have to wait and see. There are a lot of nominees, there’s a lot of judicial openings. I think there’s 110 or 11 as we speak. And the Biden White House is starting to send through a lot of nominees. Some of these people didn’t get through the last Congress, they have to start over. They don’t necessarily have to have encompassing hearings, but they do have to get a vote out of committee again, these nominees, and move to the floor. So this process is starting over and so Durbin is saying, “Look, be careful because I am getting a lot of pressure to get rid of this, and we might just have to act if we’re not able to get our nominees through.”
Preet Bharara:
Is part of the problem that in the upcoming two-year period, a lot of judicial vacancies are coming up in states that have Republican senators, and that wasn’t so much the case the first two years?
Leigh Ann Caldwell:
Yeah, that’s absolutely right. That’s exactly right. I think more than half of the vacancies are in red states. And that’s a really important point. And that’s why the precursor of this fight is happening now because the Republicans are the ones who would block Biden’s judicial nominees.
Preet Bharara:
The other thing that’s sort of interesting in the interplay of all this that people may not fully appreciate, it’s the home state senators of the same party as the President, generally speaking. And if there are two home state senators of the same party, they have to figure out a process. But if you have a state that has one home state senator of the same party as the president, it’s basically that senator who makes the recommendation to the White House for who should be the district court judges and who should be the United States attorneys. So there’s already this process of advising consent if you’re in the same party, right?
Leigh Ann Caldwell:
Yeah, absolutely. The White House tries to work with the Senate. The party, especially the Democrats, are in control right now because they don’t want any problems. They especially don’t want problems with members of their own party. That becomes a big headline and that’s something they absolutely want to avoid. And so the White House is in touch with Durbin’s office, with Schumer’s office, with the Judiciary Committee to ensure there are specific, you were one of these people, there are specific people in the leadership offices and the Judiciary committee that work with the White House to choose nominees. And so they try to make it a hand in glove process as much as possible.
Preet Bharara:
But if you have a Democratic President in a state like Texas or a number of other states that have only senators from the other party, if they want to be obstructionist, easily without even having to vote, without even having to go to the floor without even having to make a stink, they just literally don’t have their counsel hand over the blue slip. It’s kind of an easy way to veto a nominee almost without controversy. Right?
Leigh Ann Caldwell:
Yeah, absolutely. It’s a really easy way and it’s such an arcane procedure that it usually doesn’t get a lot of coverage. Judicial nominations don’t get a lot of coverage. Blue slips are hard to understand, but also it’s a very, very easy way for an opposing member to stall a President’s agenda through their judicial nominees.
Preet Bharara:
It’s such an arcane process. I’ll end with a quick anecdote before asking you a final question. When I was Senator Schumer’s Chief Counsel, I was a person responsible on the judiciary committee for doing a number of things, including processing the blue slips. And my predecessor, Mike Garcia, had been nominated to be the US attorney in the Southern District of New York. And he called me one day, he’s like, “Is there a problem with Senator Schumer? Is he not supporting the nomination?” Actually, he didn’t call me. He had an associate call me, so it wasn’t him doing it. And I said, “I personally got the senator to sign the blue slip, and we checked the box, and then I personally delivered it to Arlen Specter, who was the chair at the time to his judiciary committee office like weeks earlier. So meanwhile, the nomination is sitting out there, they were about to be in, I think, in August recess, and he’s trying to figure out where he is supposed to live, where he is going to put his kids in school as his nomination in jeopardy.
So I go down to the judiciary committee office and I’m friendly with the folks there, and I say, “What happened to the blue slip for the pending US attorney in SDNY?” And they say, “Well, our clerk handles that and processes it. He took off to study for the bar exam, so let’s go in his office and see.” And there’s like a closed office. It hasn’t been used in weeks. And there in the inbox is the interoffice envelope from Senator Schumer’s office to Senator Specter’s office with the blue slip that literally has the fate of the future career of a nominee from the president just sitting collecting dust. So…apart from whether or not that’s anti-democratic-
Leigh Ann Caldwell:
That’s amazing.
Preet Bharara:
… Or not, that’s kind of crazy, and but for the fact that we sort of knew each other and have mutual friends, that would not have been undone.
Leigh Ann Caldwell:
Yeah, that’s incredible. That’s literally like it got lost in the mail.
Preet Bharara:
Got lost in the mail. I hope that guy passed the bar exam. Are there any other things, you think, in the coming two years that will be focal points for the battle on judges?
Leigh Ann Caldwell:
So it’s a great question because it’s important to remember the context is that in a divided government with a Republican controlled house, there’s not going to be a lot of legislation that gets done. And so as Senate Republican leader, Mitch McConnell, likes to say that they are in the personnel business. The Senate is in the personnel business. A lot of their job is just to get the president’s cabinet and officials running and the judiciary. And so this is really what Schumer is going to focus on. This is what Durbin is going to focus on. He has big, big goals. I talked to him about it right before Christmas, even before this issue. He was talking about his goals for the judiciary, remaking the judiciary. So because a lot of these vacancies are in Republican states and because, other than the debt limit, they’re not going to have that much to fight over. A lot of these battles are going to take place, partisan battles, over these nominations.
Preet Bharara:
Indeed, they will. And if there’s a Supreme Court vacancy, let’s see what happens.
Leigh Ann Caldwell:
Yes, of course.
Preet Bharara:
Leigh Ann Caldwell, thanks so much for joining the show.
Leigh Ann Caldwell:
Preet, thanks for having me.
Preet Bharara:
For more analysis of legal and political issues making the headlines become a member of the Cafe Insider. Members get access to exclusive content including the weekly podcast I co-host with former US attorney, Joyce Vance. Head to cafe.com/insider to sign up for a trial. That’s cafe.com/insider. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at Preet Bharara with the hashtag, #AskPreet, Or you can call and leave me a message at 669 247 7338, That’s 666 24 Preet, or you can send an email to letters@cafe.com. Stay Tuned is presented by Cafe and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore, The senior producer is Adam Waller. The editorial producers are Sam Ozer-Staton and Noa Azulai. The audio producer is Nat Wiener, and the Cafe team is Matthew Billy, David Kurlander, Jake Kaplan, Namita Shah, and Claudia Hernandez. Our music is by Andrew Dost. I’m your host Preet Bharara. Stay tuned
