Patterico's Pontifications

5/21/2005

Returning the Blue Slip Rule

Filed under: General — Patterico @ 2:33 pm



Kevin Drum repeats a proposal that he has made before:

[A]llow Democrats to use all the same rules that Republicans have made such copious use of over the past few decades in order to stall judicial nominations and prevent them from coming before the full Senate for an up or down vote. That means rules like anonymous holds, blue slips, and minority consent to report out nominees.

I agree with Drum on blue slips and (if I understand them correctly) anonymous holds — for this term only, after which such rules should never be used again. I disagree about minority consent to report out nominees, because Democrats were the ones to benefit from that rule during most of the Clinton years. Let me explain my thinking:

We should recognize that, as many Republicans have noted, the GOP’s hands are not clean on this issue. This is especially clear on the issue of blue slips, which are being treated differently now than they were during the Clinton years. I agree with The Corner’s Jonathan Adler that, in return for killing the filibuster, we should return the blue-slip power to Democrats for this term only.

As part of the agreement, both sides must agree that in the future — regardless of which party controls the Senate or the Presidency, we won’t use silly rules like the blue slip. This agreement would not officially bind any future Senate, of course, but it would place a lot of political pressure on both sides to honor the agreement.

By the way, this apparently would not prevent a vote on Janice Rogers Brown, contrary to the view of groups like the Alliance for Justice. As a Corner reader explained, “a senator is able to blue slip only those nominees that would sit in that senator’s home state.” While Janice Rogers Brown lives in California, she would sit in D.C., which is not represented by any Senator. If this reader is right — and I can’t find anything to the contrary — then no Senator can blue-slip a nominee to the D.C. Circuit Court of Appeals.

Which means that, once we kill the filibuster, we can bring back Miguel Estrada — if he’s still willing.

I don’t agree with Drum on the issue of returning Rule IV, which requires the consent of at least one minority senator to move an issue out of committee. The Democrats were in the minority for most of the Clinton years. They, not Republicans, were the ones to benefit from Rule IV then. There is no issue of fairness in removing it now.

As for “anonymous holds,” I don’t have a problem with returning those for this term only — if I understand correctly how they work. This left-leaning site describes the hold in this way:

Two other methods historically have been at least as important. One is the “hold” where a senator communicates to the Senate leadership that he or she would withhold support for a unanimous consent agreement if the matter were to come up. The reason this has power is that, in the absence of a powerful Rules Committee like the House has, the Senate’s ordinary business depends on unanimous consent agreements to specify what bills will be considered when, who may speak, what amendments may be offered or if any may be offered at all, and when votes will take place. The quiet threat of a hold ordinarily is enough to take an issue — including a judicial nomination — off the agenda, at least temporarily. [The other method described is the blue slip, which I already discussed. — Ed.]

Thus, an anonymous hold doesn’t necessarily prevent a nominee from coming up for a vote. It just means that the nominee cannot be presented for a floor vote through unanimous consent. So, if a hold is placed on a nominee, the vote on the nominee may not take place as expeditiously as it otherwise would, but it would still occur if the leadership decided to schedule a vote.

Now it may be that anonymous holds were used as an excuse not to bring things up for a vote during the Clinton years — but that would be because the Republicans were in the majority. Being in the majority has always given a party certain prerogatives regarding the agenda.

If I understand this issue correctly, let the Democrats have their anonymous holds as well.

I don’t like rules like anonymous holds, or the blue-slip rule. I would like to see them disappear in the future. But returning them for this term only is the right thing to do. It would show good faith on the Republicans’ part, and ought to give aggrieved Democrats some sense that they are being treated fairly.

Republicans can then eliminate filibusters with an entirely clear conscience, and the nominations process will be largely fixed for the future.

One Response to “Returning the Blue Slip Rule”

  1. The whole Senate rules thing is crap. The majority always has power that’s why the majority gets to lead — they won the election.

    In the Clinton years the Republicans were in the Senate majority at times, the winner has rights. They were under no provisions to do anything other than excercise those majority rights. As did the Democrats when Jeffords jumped ship — remember?

    If you really want to go way back, lets get rid of these pompous senate kinglets and get rid of Amendment 17. This would then allow the State governors to appoint Senators and get rid of unfunded federal mandates in the process. I like this much better than anything you proposed.

    The idea of a people’s house and the state’s house was indeed the best. Just imagine what ills would go away then.

    10ksnooker (26027c)


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