The Federal Judge Confirmation Process and Blue Slips Explained
The United States has a dual court system with separate state and federal court tracks. Today, we discuss an important part of the federal court system: federal judges. How is a federal judge confirmed? What does the process look like in the U.S. Senate and what is a “blue slip?”
The federal court system is composed of district courts, appellate courts (also known as circuit courts) and the U.S. Supreme Court. There are 677 judges across 94 district courts, 179 judges across 13 appellate courts and nine justices on the Supreme Court, all of whom serve lifetime appointments. While all federal judges are confirmed by similar processes, district and appellate court judges do not typically garner as much public attention as U.S. Supreme Court justices during the confirmation process. Today, we shine a brighter light on how district and appellate court judges are confirmed.
How are federal judges confirmed?
Federal judges are nominated by the president and confirmed by a majority vote in the U.S. Senate. Here are the procedural steps federal judicial nominees take to be confirmed.
First, a seat on a district or appellate court seat opens up.
If a judge retires, resigns, takes senior status or passes away, or if Congress creates a new judgeship, a vacancy is announced.
The president nominates someone to fill the vacancy.
The president nominates federal judges, though members of Congress often provide the president with suggestions. Article II, Section 2 of the U.S. Constitution states that the president “shall nominate, and by and with the Advice and Consent of the Senate…Judges of the supreme Court, and all other Officers of the United States.”
Next, the Senate Judiciary Committee considers the nominee.
The nomination then goes to the Senate Judiciary Committee for consideration. Senators who are from the state of the vacancy (referred to as home-state senators) receive and send back what is known as a blue slip to show support or opposition to the nominee.
A blue slip is a blue piece of paper that the Senate Judiciary Committee uses to survey home-state senators’ views of the nominee. A home-state senator can do one of three things with a blue slip: return it with comments supporting the nominee, return it with comments opposing the nominee or not return it at all. Since the blue slip process is not mandatory under the U.S. Constitution but instead is a courtesy process, the exact impact of a blue slip on the nominee’s confirmation depends on the rules set by the chair of the Senate Judiciary Committee. In other words, while the Constitution does require the “advice” and “consent” of the Senate, the approval of the nominee by home-state senators is purely ceremonial and has historically been “applied in somewhat varying ways by different chairs.” The extent to which a blue slip can halt a nomination is dependent on the committee chair’s policy.
While there are conflicting accounts of the history of blue slips, the practice arose around 1917 and has changed over time in the Senate Judiciary Committee. From its conception until the late 1950s, blue slips were used to request the opinions of home-state senators on a nominee. However, between 1956 and 1978, a nomination could not move forward without two positive blue slips. Notably, blue slips were used by segregationists as a “tool of massive resistance” following the U.S. Supreme Court’s 1954 decision in Brown v. Board of Education, the Court’s landmark decision that held that school segregation was unconstitutional.
In the modern era, the role of the blue slip has changed. In 2018, Republicans eliminated blue slips for appellate court nominees. Currently, the blue slip process remains in place only for district court nominees. For example, if there is a vacancy in a Florida district court, whoever President Joe Biden nominates to fill the vacancy would need blue slips returned by both Republican senators from Florida, Sen. Marco Rubio (R) and Sen. Rick Scott (R), to move forward in the confirmation process.
Finally, the Senate votes.
After the blue slip process in the Senate Judiciary Committee, the nominee is either reported (meaning moved to the next step of the process) favorably, unfavorably or without recommendation to the full Senate for a floor vote. Alternatively, the Senate Judiciary Committee can vote to reject the nominee, thereby preventing the nominee from moving on to a full Senate floor vote.
Currently, for a nominee to be confirmed, the nominee must receive a majority, or 51 votes in the Senate. Until 2013, judicial nominations could be filibustered by the Senate, meaning that the nominee had to receive 60 votes to be confirmed. In the face of Sen. Mitch McConnell’s (R-Ky.) unprecedented filibustering of then-President Barack Obama’s executive and judicial appointments, then-Majority Leader Harry Reid (D-Nev.) chose the “nuclear option” in 2013 and removed the 60-vote filibuster for all judicial nominees except for those to the U.S. Supreme Court. McConnell extended this rule to include Supreme Court appointees in 2017. Now, if a federal court nominee receives a majority of votes in the Senate, the nominee is confirmed and will be a federal judge with life tenure.
Why does the confirmation process matter?
Federal judicial nominations matter because district and appellate court judges decide cases every day that touch all areas of our lives — from voting rights and redistricting to reproductive justice, immigration policy, environmental policy and everything in between.
Despite this importance, blue slips can severely curtail Democratic progress toward transforming the federal bench to be more diverse and progressive. District court vacancies in red or even purple states where Republican senators ostensibly have veto power via blue slips can and have made it nearly impossible to confirm highly qualified nominees to these courts.