Should the blue slip be scrapped for district courts, it ought to be eliminated for circuit courts as well.
In the early years of the Trump administration, the blue slip practice was effectively dismantled for circuit court nominees. The aim was to prevent states with one or more Democratic senators from blocking every circuit nomination. Yet the blue slip persisted for district court nominees through Trump’s first term, the Biden administration, and Trump’s second term. Is there any reason to think the district court blue slip would survive if a Democrat won the White House in 2028 with a 56-seat Senate? I doubt it. Indeed, considering how Democrats blocked a large number of U.S. Attorney nominations, I doubt the blue slip would endure even for that role.
Assume the district court blue slip is eliminated. If Republicans regain power, consider a thought experiment: actually remove the blue slip for circuit judges as well. As noted, circuit judges serve the entire circuit, not a single state. The notion of a “home state senator” for a circuit seat is a misapprehension. Of course, seats are tied to a state by custom, but nothing in the statute requires it. If Congress wished to assign a seat to a state, it could do so easily. However, a Circuit Court Judge decides cases that affect all the states within the circuit. Over time, some seats have shifted from one state to another.
The White House might advance this plan by treating all circuit court vacancies as at-large openings. In other words, nominees would be sought from candidates across every state in that circuit. If a Fifth Circuit vacancy arises, the Senators from Texas, Louisiana, and Mississippi could all submit recommendations, and the President could choose the strongest candidate from the entire pool. Likewise, if a vacancy opens in the Eighth Circuit, the Senators from the states spanning North Dakota to Arkansas would be able to propose candidates.
There are many obvious objections.
First, and foremost, requiring this much consultation could clog the process. Coordinating with a single group of senators is demanding enough; multiplying that by many more could become unworkable. But it would amount to consultation. The White House would only need to interview those judges who clear the threshold. Again, no formal blue slip. I suspect that if you rank all circuit-wide nominees, only a small fraction would actually be deemed suitable.
Second, some senators are particularly adept at selecting judges. Opening up the process to many who are less capable could worsen the outcome. Indeed, senators are democratically accountable, while people in the Office of Legal Policy (OLP) and the White House Counsel’s Office are largely unknown. I think the conclusion is that very few senators are truly skilled at this task. The Mississippi and Arkansas delegation, for instance, would be better kept from choosing their friends as judges. On balance, I believe this approach would yield a larger share of strong judges than the current system. Of course, the President could defer more to senators with proven track records of successful nominations.
Third, senators are unlikely to agree to this process, and will resist relinquishing their customary prerogative. Again, in this hypothetical, the blue slip is removed for district court judges, so the landscape would be different. Consider that district court judges can issue nationwide vacaturs that affect the entire country; it’s worth questioning why senators should hold so much control. The Senate can, of course, vote down a nominee, but that decision would be one they must answer for. Would Senators Boozman and Cotton have voted against Judge Rudofsky on the floor? Probably not.
This is just a thought experiment. Material for future reflection. That is, unless the Grand Old Party ends up disappearing like the Federalists and the Whigs did.
