GOP Gives The Pink Slip To The Blue Slip As Another Governing Norm Gets Swept Away

About ten days ago, I wrote that it looked like Mitch McConnell and the Republicans were planning to eliminate the practice of blue slips that they used repeatedly to keep President Obama from getting his appointments on to the federal bench. The blue slip process allowed a Senator from a state covered by the federal judicial district the nominee will serve on to essentially veto that choice.

Republicans constantly and repeatedly used the blue slip process to keep Obama’s appointments from even being considered. Marco Rubio once proposed a nominee that Obama eventually selected and then Rubio proceeded to use the blue slip process to put a hold that very nominee. But perhaps the greatest abuse of the process came from North Carolina Senator Thom Tillis who abused the blue slip process to keep a seat on the US District Court for the Eastern District of North Carolina open for over a decade. In another case, a seat on the US Court of Appeals for the 5th Circuit has remained open for the last 5 years.

All told, 17 federal judicial appointees never received a hearing because of the Republicans abuse of the blue slip process. And that actually understates the problem because Obama gave up even nominating appointees for districts covering states represented by two Republican Senators because he knew that they would be blue-slipped and it would be a waste of time. And we haven’t even mentioned Merrick Garland.

Now, having abused the process for the Obama years, Republicans are planning to scrap the process in order to pack the federal bench with their Federalist Society extremists. In fact, Trump’s first judicial nominee is for the 6th Circuit covering Kentucky. That seat has remained vacant since 2013 because Mitch McConnell blue-slipped Obama’s nominee.

As Senator Feinstein rightly notes, “Eliminating the blue slip is essentially a move to end cooperation between the executive and legislative branch on judicial nominees, allowing nominees to be hand-picked by right-wing groups.”

So, yet another governing norm is cast aside in order for the Republican party to grab more governmental power. Now some, like Erik Loomis, argue that getting rid of the blue slip process will be better in the long run because it will allow Democrats to actually get their nominees confirmed when they once again control the presidency and the Senate.

But I think that largely misses the point. There was a reason the blue slip process was implemented, just like there was a good reason for the filibuster in the Senate. These processes mitigate the tyranny of the majority, which is especially important in the Senate, because that is exactly how the House works. It encourages bipartisan solutions and creates a certain constancy in governance, so that policies have some sort of continuity and don’t swing from one extreme to another.

In the judicial sphere, eliminating the blue slip will create a situation where you have districts with almost totally opposing judicial philosophies. This has three, largely negative, implications. First, it will encourage the appointment of younger, inexperienced, and more ideological nominees. That will not be good for enhancing the acceptance of the rule of law. We already see many on the right talking about simply ignoring judicial rulings.

Second, opponents of specific governmental policies will go venue shopping, bringing cases in districts where they know the judicial philosophy largely hews to the result they are looking for. We have already seen this happen with Obama’s overtime rule where opponents filed in the Eastern District of Texas because they not only knew the judges on that Court would be sympathetic to their view but would also give them a quick decision.

The consequence of venue shopping will mean more conflicts between district rulings, meaning even more cases that need to be resolved by the Supreme Court. And the Court’s docket will not be able to keep up with the conflicts that arise. Meaning that justice will continue to be denied for longer periods of time and policies will remain in limbo for equally extended periods. We see this in all the recent gerrymandering cases, which take multiple election cycles to get resolved, leaving voters disenfranchised in election after election. Certain voters in North Carolina have voted in illegally gerrymandered districts in three of the four elections this decade because of the lack of speed in the judiciary and the lack of a real enforcement tool ever since the Supreme Court gutted the Voting Rights Act.

This is no way to run a country.

If you’ve read this blog, you will know how I continue to rail about the Republican party’s continual attacks on our democratic norms and foundations in the pursuit of raw political power. Abusing and now eliminating the blue slip process is just another step down that road. And, yes, there is some truth to the fact that removing some of these obstacles will allow Democrats to push their agenda through more easily when they get power. But I think it is important to realize what exactly the Republicans have destroyed and what our democracy has lost with that destruction. These governing norms are what David Frum calls the “guardrails of our democracy”. The GOP has been removing these guardrails section by section for the last 40 years. And without those guardrails, it becomes far easier to veer off the path of democracy and into autocracy, plutocratic oligarchy, and other dead-ends of governance. And it will take a long time, if ever, to put those guardrails back in place.