Patterico's Pontifications


Blue Slip Question

Filed under: Dog Trainer,Judiciary — Patterico @ 6:49 am

Reporting on the confirmation of Janice Rogers Brown, the L.A. Times said yesterday:

California’s two senators — Dianne Feinstein and Barbara Boxer, both Democrats — opposed Brown’s elevation to the federal bench. Before Bush came to office, the Senate traditionally considered opposition by home-state senators sufficient to block a nominee.

“This may be the first such Senate confirmation over the opposition of both home-state senators in the history of the United States Senate,” said Sen. Patrick J. Leahy of Vermont, the senior Democrat on the Senate Judiciary Committee.

The question: does the blue-slip policy apply to Janice Rogers Brown? Her situation is unusual in that her “home state” is not where she will sit if confirmed. She currently resides in California, but she is being nominated for the District of Columbia Court of Appeals, a jurisdiction without Senators. So: does the “blue slip” policy apply in this situation?

I don’t know the answer to that definitively. What little evidence I have been able to gather suggests that the answer is no. A reader to National Review Online’s The Corner once provided evidence for that proposition:

[A] senator is able to blue slip only those nominees that would sit in that senator’s home state. So Senators Helms and Edwards would be able to prevent the confirmation of North Carolinians, but not of Virginians or Marylanders. (As you know, each state is allocated a certain number of appellate judges, but these numbers are not always honored. Hence, Bush 43 nominated Claude Allen of Virginia to fill a Fourth Circuit seat that had been held by a Marylander; if successful, the Allen nomination would have “moved” one of the “Maryland seats” to Virginia. Notice also that the blue slips for Claude Allen were sent to Virginia’s John Warner and George Allen, not Maryland’s Paul Sarbanes and Barbara Mikulski.)

To state the obvious, there aren’t any home state senators for Washington, DC. So [if the blue slip policy were in force] nominees to the DC Circuit would be confirmed as a matter of course (assuming they have majority support in the Senate).

Bolstering this claim is the fact that the Justice Department’s Office of Legal Policy has a list of blue slips and their status for judicial nominees. For all nominees to the D.C. Circuit, including Brown, the home-state Senator is listed as “N/A.”

This is not definitive, but it suggests that the L.A. Times is wrong to claim that Senators Boxer or Feinstein would traditionally have had the right to kill Brown’s nomination through the blue-slip process. If anyone can find any more definitive information that would support or debunk that suggestion, please let me know in the comments. I don’t plan to write the L.A. Times to complain unless I can find more conclusive evidence than this.

UPDATE: Further evidence: D.C. Circuit nominee Brett Kavanaugh is a native of Bethesda, Maryland. According to the DOJ link above, no blue slips were sent to Maryland’s (or any other state’s) senators for approval of Kavanaugh.

7 Responses to “Blue Slip Question”

  1. I think the LAT’s confused on this issue. (I know; big surprise.) Had Judge Brown been nominated to sit on the Ninth Circuit, Boxer or Feinstein could have “blue-slipped” her. This may explain in part why the president nominated her to the D.C. Circuit, where she would be beyond the blue slip brigades. Patrick Leahy understands this, but he’s being disingenuous when he suggests that opposition from Boxer and Feinstein should have been sufficient to kill Brown’s nomination, all by itself. (Leahy? Disingenuous? What, never. Well, hardly ever…)

    Gary (193878)

  2. I pretty certain you’re right on this one Patterico.

    That’s also one reason why the DC Court has been looked to as fertile ground for Supreme Court Nominees, because the contentious and impressive ones aren’t knocked out through blue-slipping.

    Joel B. (3243ec)

  3. Nice catch. Here’s another example from the DOJ, listing the nominees of the 107th Circuit. Again, every D.C. Circuit nominee, plus the only Federal Circuit Nominee, all have blue slips from that same mystery Senator, Joe N/A.

    Xrlq (e2795d)

  4. I called both Senators’ offices, but to no avail. The lady answering at Senator Feinstein’s office launched into a partisan rant about how Democrats can’t blue slip anymore because the Republican meanies won’t let them. The man who answered at Senator Boxer’s office told me that Sen. Feinstein could have “blue slipped” Brown because she was “on the committee,” but Senator Boxer couldn’t because she wasn’t. I said “huh, doesn’t blue slipping depend on which state you’re from, not what committee you’re on?” The response was essentially “gee, that makes sense but er.. uh, I don’t know.”

    Your tax dollars at work.

    Xrlq (e2795d)

  5. Then again, both were clear on one point: whether or not Sens. Boxer and Feinstein could have blue slipped Janice Rogers Brown, neither of them did. That alone establishes that Maura Reynolds is full of crap.

    Xrlq (e2795d)

  6. […] Xrlq
    12:01 pm

    As usual, Patterico catches the L.A. Times misreporting another fact, and guess what? That error […]

    damnum absque injuria » Another Day, Another Lie at the L.A. Times (38c04c)

  7. The issue is whether or not Feinstein, having once had such power over JRB, can claim control still, even tho JRB has since moved to another jurisdicton where she should be free from all that. [Perhaps the Supreme Court could come up with an answer that wouldn’t cause as many problems as the last time they considered such a question.]

    ras (f9de13)

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