Sen. Dianne Feinstein, D-Calif., said in 2001 she believes using a blue slip, a practice that allows home-state senators to weigh in on a judicial nominee, “should hold no place” in the Senate. But that comment stands in contrast to her more recent criticisms of the Senate Judiciary Committee’s GOP leaders for their use of the practice.
Feinstein, the top Democrat on the Senate Judiciary Committee, made the remarks during a speech on the Senate floor in June 2001 in anticipation of Sen. Patrick Leahy, D-Vt., then the committee’s chairman, announcing blue slips would be available to the public.
“The U.S. Senate is not a private institution. We are a public democracy,” Feinstein said during her remarks. “I have come to believe the blue slip should hold no place in this body. At the very least, the use of a blue slip to stop a nominee, to prevent a hearing and therefore prevent a confirmation, should be made public.”
Feinstein’s comments then differ sharply from the outrage she and her fellow Democrats on the Senate Judiciary Committee have expressed in recent years for how the blue slip has been used under the leadership of former Chairman Chuck Grassley, R-Iowa, and current Chairman Lindsey Graham, R-S.C.
Grassley viewed the blue slip as a courtesy and said that as long as the White House consulted with home-state senators, an unreturned blue slip would not preclude an appeals court nominee from receiving a confirmation hearing. Nominees to the federal district courts, however, would require positive blue slips from both home-state senators.
Graham, who became the new chairman in January, has maintained his predecessor’s policy.
But Democrats, including Feinstein, have accused their Republican colleagues of effectively killing the blue slip in an effort to confirm as many of President Trump’s nominees as quickly as possible as they seek to reshape the federal courts.
“I think this breakdown in Senate traditions is really harmful,” Feinstein said Thursday during a hearing to consider two nominees to the the 9th U.S. Circuit Court of Appeals.
Neither Feinstein nor Sen. Kamala Harris, D-Calif., returned their blue slips for the 9th Circuit nominees, Kenneth Lee and Daniel Collins.
The blue slip is a century-old Senate practice under which home-state senators can voice either their support or opposition to a judicial nominee on a blue form. But recently, Democratic home-state senators have signaled their opposition to Trump’s nominees by failing to return their blue slips to the Senate Judiciary Committee.
Despite her support for the practice today, Feinstein in 2001 said she was “one member of the Judiciary Committee who will happily vote to do away with the blue slip” and called it “just plain wrong” that a nomination could die without a confirmation hearing due to either an unreturned blue slip or a negative blue slip. She also warned the process as it stood at the time is “open to abuse.”
Instead, she called for members who seek to use a blue slip to block a nomination from proceeding to appear before the Senate Judiciary Committee to explain why the nomination should not move forward.
“In my view, the rationale behind the blue slip process is faulty,” Feinstein said in 2001. “The process was designed to allow home-state senators — who may in some instances know the nominee better than the rest of the Senate — to have a larger say in whether the nominee moves forward. More often than not, however, this power is and will be used to stop nominees for political or other reasons having nothing to do with qualifications.”
Feinstein characterized the blue slip as the process by which a senator can “essentially blackball a judge from his or her state when that member has some reason to do so” and likened the practice to the efforts of boards of directors of private clubs and organizations to discriminate against people of different races or religions.
“The usual practice was, and still is in instances, to prevent someone of a different race or religion from gaining access to that organization or club,” Feinstein said in 2001. “This is essentially what the blue slip process is about.”
