The hope of many legal advocacy groups that President Obama would focus on fixing the judicial vacancies crisis with a flood of nominations now that the filibuster is gone isn't likely to be realized. President Obama and his administration tell Talking Points Memo that a significant obstacle still exists, and they won't push the issue. That obstacle, however, is easily overcome.
The blue slip is an old tradition, dating back to at least 1917, that lets senators have a say on which judges are appointed to courts in their home state. The way it works is that when a judge is nominated, the Judiciary Committee sends a "blue slip" to home state senators seeking their approval. If they sign off, the committee moves forward with the nomination. If one or both of them disapproves or withholds the blue slip, the nomination tends to grind to a halt.The blue slip is just a tradition, a tradition that Sen. Orrin Hatch (R-UT) ignored when he chaired the Judiciary Committee. When Democrats regained the majority and Sen. Patrick Leahy took over, he restored it, but he seems open to change, just as he was on the nuclear option.
The White House contends that the blue slip policy remains an impediment to appointing judges. Given the Senate's adherence to the tradition, Obama prefers not to nominate individuals and put them through the tough process unless they're pre-approved by home state senators. Most of the 42 district and appellate court vacancies without nominees are in states with GOP senators. In Texas, for instance, there are seven judicial vacancies with no nominees.
"I assume no one will abuse the blue slip process like some have abused the use of the filibuster to block judicial nominees on the floor of the Senate," Leahy said. "As long as the blue slip process is not being abused by home state senators, then I will see no reason to change that tradition.""As long as" isn't "I won't change it." Leahy was extremely reluctant to change Senate rules on the filibuster of nominees until Republicans pushed him over the edge. His willingness to change his mind on the filibuster portends a willingness to change his mind on the blue slip. That's not an obstacle.
This is a fight President Obama should take on, because it's both one he could win and because judicial vacancies really are a crisis. He can start with those seven vacancies in Texas.