Ending Blue Slip Power a Good Start
by JBS President Emeritus John F. McManus
In 1913, the United States Senate’s role in governing our nation suffered a dramatic and unfortunate alteration. Until adoption of the 17th Amendment in that year, the two senators sent to Washington by each state were chosen by state legislatures. The main task of all senators, a widely understood mission, was to protect the state and its people from possible domination by the federal government.
The obvious intention of the Founders, known to all who were aware of the attitude of the Constitution’s authors and ratifiers, upheld the authority and prerogatives of the states. The national (federal) government was given few powers and states were left alone to govern within their own borders. One result of this system saw competition arise among the states to be the least domineering, the state where people would want to live, raise families, establish businesses, etc. As always occurs where competition exists, the states vied with each other to be the best state.
After 1913, the U.S. Senate became a virtual duplicate of the House of Representatives. The branch of the federal government supposed to be the guardian of the rights of the states speedily distanced itself from the intention of the Founders. Accordingly, various governmental powers, many of which trample on the rights of the individual states and are clearly unconstitutional, have become unquestioned federal duties. No longer is there a branch of the federal government to keep Washington-style domination away from welfare payments, housing, transportation, workplace safety, medical care, and a host of other areas. Federal power has mushroomed and now formerly independent states have lost their independence.
The Constitution also wisely granted power to the Senate to approve or disapprove nominees for judgeships at the Supreme Court and lower federal courts. Beginning in 1917, a procedure known as “blue slip acquiescence” enabled a senator to indicate acceptance of a presidential nominee from his or her home state for a place on a federal appeals court or a lower federal court. Refusal to send approval of an appointee on the blue-colored form torpedoed a presidential nomination.
With the Senate now controlled the Republican Party, even though “barely” in control, Senate Majority Leader Mitch McConnell (R-Ky.) and Judiciary Committee Chairman Charles Grassley (R-Iowa) have ignored the wishes of Democrat senators by downplaying the blue slip approval process. Oregon’s two Democrat senators, Ron Wyden and Jeff Merkley, refused blue slip approval for a nominee to the Ninth Circuit Court of Appeals. But the Republican leaders in the Senate have abandoned the blue slip process. Wisconsin Senator Tammy Baldwin likewise refused to send the coveted blue slip approval for the nomination of a fellow Wisconsinite. In this remarkable turnabout, the desire of the Democrat senators to block GOP nominees has not been fulfilled.
During the Obama administration when Democrats ruled the Senate and Senator Patrick Leahy (D-Vt.) chaired the Judiciary Committee, the blue slip procedure was scrupulously followed. Before he left the Senate in late 2017, for example, Minnesota Democrat Al Franken refused to issue blue slip approval for a conservative nominated by President Trump to take a seat on the Eighth Circuit Court of Appeals. Now, blue-slip approval is no longer necessary.
Asked about this turning away from a century-old practice, Senator McConnell said: “The blue slip is meant to encourage consultation between the White House and home-state senators. It’s not a way for senators to have veto power over nominees for their political and ideological reasons.” Senator Grassley agreed with his GOP colleague.
So, nominees for federal judgeships will not face rejection by a single senator’s use of this arcane procedure. This is a welcome development. But reversing the 17th Amendment, a far more important step toward honoring the intent of America’s Founders, awaits overdue consideration.
Mr. McManus served in the U.S. Marine Corps in the late 1950s and joined the staff of The John Birch Society in August 1966. He has served various roles for the organization including Field Coordinator, Director of Public Affairs, and President. Mr. McManus has appeared on hundreds of radio and television programs and is also author of a number of educational DVDs and books. Now President Emeritus, he continues his involvement with the Society through public speaking and writing for this blog, the JBS Bulletin, and The New American.