The Senate Blue Slip Process

President Trump’s nomination of James McDonald to serve as United States Attorney for the Southern District of New York has a blue slip problem in the Senate. Blue slips may sound like insider jargon. But they are one of the many ways senators exercise their power behind the scenes.
 
Trump needs to fill the U.S. Attorney for SDNY position after he nominated its current occupant, Jay Clayton, to serve as Director of National Intelligence. But New York’s two Democratic senators – Chuck Schumer and Kirsten Gillibrand – oppose McDonald and are refusing to return their blue slips to advance his nomination. Trump, in turn, is keeping Clayton in the U.S. Attorney position until the Senate confirms McDonald.
 
What Are Blue Slips?
 
When the president nominates someone for a Justice Department position, such as a U.S. Attorney, the Senate Judiciary Committee sends a form printed on blue paper to the nominee’s home-state senators or to the senators from the state where the office is located. The form asks for the senators’ views on the nomination.
 
The committee usually proceeds with the nomination if the senators return their blue slips with favorable assessments. If they return negative blue slips or refuse to return them at all, the committee traditionally stops.
 
But “traditionally” is the key word.
 
The blue slip process does not appear in the Standing Rules of the Senate. And it is not spelled out in the Judiciary Committee’s rules. Senate Rule XXV gives the Judiciary Committee jurisdiction over Justice Department nominations. Senate Rule XXXI provides that nominations are referred to the appropriate committee after the Senate receives them. Neither rule gives home-state senators a veto.
 
The blue slip is different. It is an informal practice administered by the Judiciary Committee chairman. That means its practical effect depends on the chairman’s policy and on whether a majority of the committee is willing to acquiesce in that policy.
 
Over the years, chairmen have treated blue slips differently. Some have required both home-state senators to return positive blue slips before moving forward. Others have been willing to proceed with just one. Some have distinguished between district court nominees, circuit court nominees, U.S. Attorneys, and U.S. Marshals.
 
That flexibility matters here. Chairman Chuck Grassley presently honors blue slips for U.S. Attorney nominees. But he is not bound by Senate or committee rules to do so. If he wanted to move McDonald’s nomination without Schumer’s and Gillibrand’s blue slips, the rules would not stop him. The obstacles are institutional practices and political will.
 
Circumventing Blue Slips
 
There are two ways to advance a nominee without blue slips. First, and most straightforward, Grassley could allow the nomination to proceed in committee without Schumer’s and Gillibrand’s blue slips. The committee could hold a hearing on the nominee and vote on whether to report McDonald’s nomination to the full Senate. That would be a departure from the Senate’s current practice for U.S. Attorney nominations, but it would not violate the rules.
 
Second, the Senate could discharge the Judiciary Committee from further consideration of the nomination. That would move the nomination to the floor even if the committee did not act. Discharge is procedurally possible. But it is politically difficult. It requires senators to take responsibility for bypassing the committee and, in this case, overriding the objections of New York’s senators.
 
That is why the blue slip works. It does not operate like a rule. It operates like a norm. And norms are powerful in the Senate because senators are reluctant to destroy a tool they may want to use later.
 
The blue slip process isn’t spelled out in the Senate rules or the Judiciary Committee rules. They are backed by senatorial courtesy and committee practice. They can block a nomination when senators and the chairman treat them as binding. They can be bypassed when the chairman or the Senate decides they are not.