Academic journal article Presidential Studies Quarterly

Qualifications or Philosophy? the Use of Blue Slips in a Polarized Era

Academic journal article Presidential Studies Quarterly

Qualifications or Philosophy? the Use of Blue Slips in a Polarized Era

Article excerpt

Presidents employ a number of institutional powers in their quest to influence public policy. Of these, the ability to fill vacancies to the federal judiciary is perhaps the most influential. Federal judges are imbued with lifetime tenure, and, as such, they can represent a like-minded president long after that president retires. Given the importance of federal judgeships, it is not surprising that opposition party senators use their advice and consent power to scrutinize and obstruct some of their nominations. Senators can employ anonymous holds to block judicial nominations from the chamber floor (New York Times 2010), they can filibuster to prevent nominees from receiving up or down votes, and they can discretely block or delay a judicial nomination by returning a negative "blue slip" to the Judiciary Committee chair.

Political observers have argued the increasing use of obstructive tactics has had profound implications for the judiciary's ability to handle its caseload. For example, placing the blame on minority party Republicans, Judiciary Committee Chairman Patrick Leahy (D-VT) argued that the Senate has laggardly confirmed Obama's nominees--that it was much slower than it was under President Bush (Leahy 2013). This criticism was not confined to Democrats. In his 2012 year-end report on the federal judiciary, Chief Justice Roberts argued that it was vital that the president and Congress provide for the "appointment of an adequate number of judges to keep current on pending cases" (Roberts 2012). In June of 2012, the president of the American Bar Association (ABA) wrote a letter to Senate Majority Leader Harry Reid (D-NV) and Senate Minority Leader Mitch McConnell (R-KY) expressing "grave concern for the longstanding number of judicial vacancies on Article III courts" (Robinson 2012). Finally, Senator Lindsey Graham (R-SC) argued that senators should only block "unqualified" nominees, as opposed to those they disagreed with on philosophical grounds (Podgers 2012). (1)

Senator Graham's statement highlights an important issue for scholars who study the nomination process. In an era marked by high political polarization, how does a nominee's perceived qualifications influence individual senators? To answer this question, we first focus on the conditions under which senators block or delay the president's judicial nominations through the blue slip process. We argue that senators who are ideologically distant from presidents are more likely to employ negative blue slips. Perhaps more importantly, though, we discover that this proclivity is exacerbated when the nominee is perceived as less qualified. That is, in the past, when the ideological distance between home state senators and the president was less severe, presidents could use legal credentials to prop up district court and circuit court nominees who shared his views. Today, in a Senate marked by high polarization and few moderates, the president cannot. Qualifications only appear to mitigate the negative effect of ideology among district court nominees and not among the more powerful circuit courts of appeals. This finding represents a shift in nomination politics and shows that nominations for circuit court positions have become more contentious. While the limited time period of available data constrains our ability to make broad generalizations, we are nevertheless led to believe that senators will continue to oppose nominees on the basis of their ideological positions--regardless of qualifications.

In what follows, we theorize conditions under which senators might return negative blue slips (or refuse to return them at all) for judicial nominations and thereby obstruct the president's judicial nominations. While the blue slip process is certainly not the only way to block a nomination, we choose to focus on it for three reasons. First, the largely anonymous nature of Senate procedure makes data difficult to come by--and we were able to capture an important snapshot of data on blue slips. …

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