Qualifications or philosophy? The use of blue slips in a polarized era.

Author:Black, Ryan C.

Presidents employ a number of institutional powers in their quest to influence public policy. Of these, the ability to fill vacancies to the federal judiciary is perhaps the most influential. Federal judges are imbued with lifetime tenure, and, as such, they can represent a like-minded president long after that president retires. Given the importance of federal judgeships, it is not surprising that opposition party senators use their advice and consent power to scrutinize and obstruct some of their nominations. Senators can employ anonymous holds to block judicial nominations from the chamber floor (New York Times 2010), they can filibuster to prevent nominees from receiving up or down votes, and they can discretely block or delay a judicial nomination by returning a negative "blue slip" to the Judiciary Committee chair.

Political observers have argued the increasing use of obstructive tactics has had profound implications for the judiciary's ability to handle its caseload. For example, placing the blame on minority party Republicans, Judiciary Committee Chairman Patrick Leahy (D-VT) argued that the Senate has laggardly confirmed Obama's nominees--that it was much slower than it was under President Bush (Leahy 2013). This criticism was not confined to Democrats. In his 2012 year-end report on the federal judiciary, Chief Justice Roberts argued that it was vital that the president and Congress provide for the "appointment of an adequate number of judges to keep current on pending cases" (Roberts 2012). In June of 2012, the president of the American Bar Association (ABA) wrote a letter to Senate Majority Leader Harry Reid (D-NV) and Senate Minority Leader Mitch McConnell (R-KY) expressing "grave concern for the longstanding number of judicial vacancies on Article III courts" (Robinson 2012). Finally, Senator Lindsey Graham (R-SC) argued that senators should only block "unqualified" nominees, as opposed to those they disagreed with on philosophical grounds (Podgers 2012). (1)

Senator Graham's statement highlights an important issue for scholars who study the nomination process. In an era marked by high political polarization, how does a nominee's perceived qualifications influence individual senators? To answer this question, we first focus on the conditions under which senators block or delay the president's judicial nominations through the blue slip process. We argue that senators who are ideologically distant from presidents are more likely to employ negative blue slips. Perhaps more importantly, though, we discover that this proclivity is exacerbated when the nominee is perceived as less qualified. That is, in the past, when the ideological distance between home state senators and the president was less severe, presidents could use legal credentials to prop up district court and circuit court nominees who shared his views. Today, in a Senate marked by high polarization and few moderates, the president cannot. Qualifications only appear to mitigate the negative effect of ideology among district court nominees and not among the more powerful circuit courts of appeals. This finding represents a shift in nomination politics and shows that nominations for circuit court positions have become more contentious. While the limited time period of available data constrains our ability to make broad generalizations, we are nevertheless led to believe that senators will continue to oppose nominees on the basis of their ideological positions--regardless of qualifications.

In what follows, we theorize conditions under which senators might return negative blue slips (or refuse to return them at all) for judicial nominations and thereby obstruct the president's judicial nominations. While the blue slip process is certainly not the only way to block a nomination, we choose to focus on it for three reasons. First, the largely anonymous nature of Senate procedure makes data difficult to come by--and we were able to capture an important snapshot of data on blue slips. Second, we believe our findings regarding blue slips can be applied to other forms of obstruction such as holds and filibusters. Finally, negative blue slips are often dispositive. As we discuss later, it is a very rare to see a committee chair schedule a hearing on a nomination that a senator blue slipped. We next explain our data, present our statistical model, and discuss our results. We conclude with a discussion about the future of judicial nominations.

Obstruction in the Modern Senate: Filibusters, Holds, and Blue Slips

Since the latter half of the twentieth century, senators have increasingly used their institutional tools to obstruct Senate business, block disfavored legislation, and slow up the president's nominations (Binder and Smith 1997; Koger 2010; Wawro and Schickler 2006). Scholars have noted that the increasing use of obstructive tactics coincided with growth in the size and scope of the federal government. As the size of the executive and legal branches grew, along with the workload of the Senate, so too did the number of measures obstructed. Why senators increasingly used these tools--especially as the amount of Senate business increased--seems obvious: they could exact concessions from time-starved party leaders and presidents.

With the threat of obstruction present, the Senate majority leader must balance legislative priorities with time. Thus, for much of the business that gets scheduled in the Senate, the process is a consensual one in which the majority and minority party leaders forge unanimous consent agreements (Ainsworth and Flathman 1995; Smith and Flathman 1989). Bills or nominations that are not granted unanimous consent agreements are frequently not considered on the chamber floor. When party leaders cannot corral their members, they do not move the bill to the floor. The tenuous nature of scheduling thus provides significant leverage to each individual senator. And when it comes to nomination politics, those same concerns affect the president's nominees.

To be sure, the Senate's rules allow a supermajority of the chamber to proceed to a vote on an obstructed measure through the cloture process. Still, such a process is time consuming and generates significant opportunity costs. A cloture petition must lie over for two calendar days before it is voted on. Then, for much of the chambers' history, an additional 30 hours of debate and amending activity could occur before a final vote is taken on the bill or nomination. (2) The Senate simply lacks the time to move cloture on every obstructed bill or nomination. Indeed, as if to underscore the problems facing Senate leaders--and highlighting the power of individual senators--much of the obstruction we observe is merely the tip of the iceberg, representing only a small slice of the possible obstruction that occurs outside public view. That is, the threat of obstruction often keeps legislation and nominations off the floor, making it remarkably difficult to measure just how much obstruction actually exists. When Senate leaders alter legislation in response to threatened obstruction or obstruction outside public view, they frequently escape our attention. (3)

Among the many institutional tools available to senators, a few, which arise from the chamber's lack of a simple-majoritarian rule for ending debate, stand out, especially to presidents on the wrong end of them. Manifest filibusters tend to get discussed the most, but holds and blue slips are also a function of this unlimited debate power. We examine each of these powers but focus primarily on the blue slip and its role in judicial nominations.

The filibuster allows an individual or a group of senators to obstruct or block a measure that enjoys the support of a chamber majority. The term "filibuster" is perhaps most frequently associated with stories of Southern senators in the mid-twentieth century delivering lengthy, round-the-clock speeches against Presidents Kennedy's and Johnson's civil rights legislation. In these episodes, senators attempted to kill bills by preventing final passage votes on them. Because there was no formal method to limit an individuals' ability to debate a measure by a simple majority, senators would seek to consume so much time on the Senate floor that the session would expire.

The hold, also a function of the unlimited debate power, is a request by a senator to her party leader to delay floor action on a bill or nomination. When a senator seeks to place a hold on a measure or a nomination, he essentially notifies his party's leader of his intent to object to the measure or nomination when or if it is brought to the Senate floor. (4) While it is ultimately still up to the majority leader to determine whether to honor a hold, the failure to do so can have far-reaching implications for the calendar, the majority's ability to conduct business, and for the president's ability to get his legislation through the Congress. As Oleszek (2008, 1) points out, a majority leader that ignores a hold might "precipitate objections to unanimous consent agreements and filibusters" and thereby stall action on important agenda items.

The blue slip, essentially a more formal version of a hold, is an institutional tool senators use to support or oppose judicial nominees. (5) A blue slip is a tool that home state senators can use to support or oppose a federal judicial nominee to a position in their state. Each blue slip provides the name of the nominee, the name of the senator, and a request that the senator provide the Judiciary Committee chair with information on the nominee. More specifically, when the Senate receives the president's nomination to the judicial vacancy, the nomination is referred to the Judiciary Committee. The committee counsel, in turn, delivers a "blue slip"--a blue slip of paper--to the nominee's two home state senators. (6) Unlike the norm of senatorial courtesy, the blue slip is not limited...

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