Rolling back the Senate’s so-called “blue slip process” would be “disastrous,” according to an op-ed written by Sen. Orrin Hatch (R-UT) on Friday. Which is somewhat of a surprising position for Hatch to take, since he largely abandoned this blue slip process in 2003.
Though enforcement of the blue slip process has varied since it was created in 1917 — for many years it largely just allowed home state senators to advise the Judiciary Committee of their views of a judicial nominee — it has, at times, permitted a home state senator to veto anyone nominated to a federal judgeship in their state. At some points in the Senate’s history, including right now under Senate Judiciary Chair Patrick Leahy (D-VT), the chair of the Judiciary Committee would refuse to schedule a confirmation hearing on a judicial nominee if one or both of the nominee’s home-state senators objected to them.
In 2003, however, when Hatch became Judiciary chair and George W. Bush was president, Hatch decided to stop allowing senators to veto nominees from their state. According to the non-partisan Congressional Research Service, Hatch changed the Judiciary Committee’s procedures so that “[a] return of a negative blue slip by one or both home-state Senators does not prevent the committee from moving forward with the nomination — provided that the Administration has engaged in pre-nomination consultation with both of the home-state Senators.”
Now, however, in his Friday op-ed, Hatch claims that it would be wrong for Leahy to do the exact same thing that Hatch did in 2003.
The crux of Hatch’s argument is that, if Leahy were to adopt the Hatch Rule right now, it would “weaken the collaboration between the president and the Senate, further politicize the confirmation process, and ultimately produce a more politicized federal judiciary.” The later two objections run headlong into an uncomfortable fact for Mr. Hatch — the American people elected a Democratic president and a Democratic Senate. If Republicans think that they should have a veto power over President Obama’s judges, they should consider winning an election first.
The first objection, however, is well-taken. Senators have greater access to their state’s bar and they have an easier time determining which lawyers in their state would make outstanding judges. It is a good idea for the White House to confer with home-state senators before making a judicial nomination. And that’s why the Hatch Rule is such a sensible rule. By giving home-state senators a veto only if the administration did not “engage in pre-nomination consultation with both of the home-state Senators,” the Hatch Rule encourages consultation without permitting a single senator to extort a president into naming objectionable nominees.
Indeed, that’s exactly what happened in the state of Georgia, where Sens. Saxby Chambliss (R-GA) and Johnny Isakson (R-GA) wielded the blue slip to force President Obama to agree to a lopsided deal where 4 Republican choices and only 2 Democratic picks were named to judgeships in that state. One of those nominees, Judge Michael Boggs, voted as a state lawmaker to keep the Confederate battle emblem on the Georgia state flag. He supported a “Choose Life” license plate that funded anti-abortion groups. And he opposed marriage equality — saying that his vote against equality was “an opportunity to stand up for things that are common-sensical,” and a stance in favor of “Christian values.”
For the moment, however, Hatch’s fear that the Judiciary Committee may adopt the Hatch Rule appears to be unfounded. Though there is growing support among Democratic interest groups for something resembling the Hatch Rule, Senator Leahy has thus far been unwilling to adopt it.