Senate Democrats continue to wish that the blue slip courtesy was a rule of the Senate. However, it is not a formal rule--never was a rule--just a courtesy to advise the Senate Judiciary Committee.
We have previously highlighted the history of the blue slip and how many past Senate Judiciary chairs have chosen to manage the blue slip.
Current Senate Judiciary Chairman Chuck Grassley has previously spoken on this issue: For circuit courts, which cover multiple states, a negative or unreturned blue slips will not be permitted to hold up nominees, unless the White House failed to consult with the home state senators; however, for district courts, which are confined to one state, the blue slip will carry considerably more weight and influence.
Chairman Grassley is simply following the Biden-Kennedy Rule regarding blue slips in the Senate Judiciary Committee. Chairman Grassley explained:
The treatment of blue slips as advisory is a bipartisan tradition. In 1978, Eastland’s successor, Sen. Ted Kennedy (D-Mass.), clarified that a negative or unreturned blue slip would not necessarily block Committee proceedings. Sen. Strom Thurmond (R-S.C.) continued this policy, as did Sens. Joe Biden (D-Del.) and Orrin Hatch (R-Utah).
Chairman Grassley reiterated this point during Judge Michael Brennan's confirmation hearing for a Seventh Circuit judicial vacancy three weeks ago:
Senator Ron Johnson returned his blue slip for Mr. Brennan. Senator Tammy Baldwin declined to return hers. I’ve nevertheless concluded that Mr. Brennan should receive a hearing . . . After reviewing the record, it’s clear the White House adequately consulted with Senator Baldwin regarding the nomination. In addition to Mr. Brennan, the White House also considered two candidates Senator Baldwin suggested. Senator Baldwin expressed to me that she’s frustrated by the state of Wisconsin’s judicial nominating commission, which has been dysfunctional and unable to recommend candidates for judicial vacancies. While I sympathize with this concern, the commission’s current shortcomings can’t be allowed to impede the President’s constitutional duty to appoint federal judges.
Senate Democrats, however, seek to continuously obstruct any efforts made by President Trump and Republicans by using any and all means. Ranking Member Dianne Feinstein stated [around the 20-minute mark]:
I really object to this . . . Senator [Baldwin] has come in and spoken with me…she feel grievously injured by this [holding a hearing without a blue slip returned]. She has worked with . . . a fine screening commission. And is deeply concerned this has happened . . .
In addition to raising the blue slip, Ranking Member Dianne Feinstein also attempted to allude to some gender bias, too, as she closed:
I find it really very hard — and particularly for a woman senator who has tried so hard, who has worked with her state commission — for her view to be rebuffed in this manner.
When asked about this comment, Ranking Member Feinstein's office did not comment further.
Nonetheless, Judge Brennan, who has garnered bipartisan support and is ABA-rated as "well-qualified," was voted out of the Senate Judiciary Committee with a vote of 11-10, sadly along partisan lines with Senate Democrats crying foul over a blue slip "rule" that does not exist.
Currently, Judge Brennan's nomination is pending on the Senate Floor, where he faces a full Senate confirmation vote. We thank Chairman Grassley for his leadership in the Senate Judiciary and work to hold hearings for President Trump's well qualified judicial nominees.