By Kyle C. Barry
AFJ Legislative Counsel
When the Senate Judiciary Committee convenes its hearing this morning, not one of the 17 judicial nominees waiting for a confirmation hearing will appear. Instead, they will keep on waiting, even though 14 of them were nominated more than 50 days ago, and even though 8 of those 14 are nominated to vacancies that are now “judicial emergencies.” Indeed, one nominee to the Eastern District of North Carolina, Jennifer May-Parker, has been pending in the Judiciary Committee for nearly 300 days. If confirmed, she would fill the longest district court vacancy in the country. Another, Jill Pryor from Georgia, has been waiting for a confirmation hearing since she was nominated to the Eleventh Circuit Court of Appeals more than two-years ago.
Particularly in places where nominees would fill emergencies—which means that, according to the Administrative Office of the U.S. Courts, caseloads are too big for courts to handle—these delays have led to dire situations where judges are overworked and the provision of justice is put on hold. So why not use today’s hearing, as the Committee would normally do, to move these nominees through the process and bring them one step closer to actually serving the American people?
The answer is as simple as it is arcane: blue slips.
During his tenure as Chairman of the Judiciary Committee, Sen. Patrick Leahy, D-Vt., has extended a powerful courtesy to Senators with judicial nominees pending in their home states: Home state Senators are asked to indicate that they approve a nominee on a blue sheet of paper. And until both Senators return a favorable blue slip, there will not be a confirmation hearing and the nomination will lay dormant. Ideally, this policy can ensure that Senators have sufficient input on who will serve as a federal judge for their constituents. But Senate Republicans have exploited the blue slip, using it to manufacture gridlock and prevent the president from appointing supremely qualified nominees. As of last week, each of the 14 nominees who should have been ready for a hearing were still waiting for at least one blue slip, and each is from a state with at least one Republican Senator.
What blue-slips are is plain; why they are withheld is less so. Senators don’t have to give a reason for withholding blue slips. They can unilaterally derail nominations without any explanation. The case of Jennifer May-Parker is particularly mysterious. In 2009, North Carolina Senator Richard Burr specifically recommended her to fill the vacancy for which she is now pending. But while Senator Kay Hagan returned her blue slip long ago, Burr has withheld his support without explanation. Similarly, Republican Georgia Senators Saxby Chambliss and Johnny Isakson wrote to President Obama endorsing Jill Pryor for a federal judgeship in 2012, but have so far blocked her nomination to the Eleventh Circuit.
To be sure, not every blue slip delay indicates outright objection—just yesterday, Florida Senator Marco Rubio finally returned his blue slip on a Southern District of Florida nominee who should have cleared the hearing hurdle today. And sometimes the delay can originate with the Committee’s ranking member, Sen. Chuck Grassley, R-Iowa, who insists that Republicans withhold blue slips until he’s done reviewing background investigation paperwork. But with more than 100 announced vacancies, and with more than 50 nominees waiting to be confirmed, both the Judiciary Committee and the full Senate should be advancing nominees as expeditiously as possible. It is bad enough that Senate Republicans have decided to force cloture votes on even the most noncontroversial judicial nominees, turning the Senate floor into a bottleneck through which nominees can only trickle through. There is no excuse for confirmation hearings to also suffer such needless delay.