As elected representatives of the people, U.S. senators should have some input over those who are given lifetime appointments to serve on the federal bench in their states.
Put should they have unilateral veto power?
That’s the central question at issue over Mississippi Sen. Cindy Hyde-Smith’s decision to block Columbus district attorney Scott Colom from becoming a federal judge.
The grounds for Hyde-Smith’s dissent — that Colom has been generally supportive of the rights of transgender individuals and that he received past campaign donations from liberal megadonor George Soros — are less the point than the mechanism that gives her the sole power to thwart his appointment. That mechanism — called the “blue slip process” — has a troubling history for which Mississippi was heavily responsible.
The process was started innocently enough. During the 1910s, so the history goes, blue slips were instituted as a means to give home-state senators a larger voice in the nomination and confirmation of federal trial court judges.
As the website Ballotpedia explains, “A blue slip is a blue piece of paper given to the U.S. senators from the home state in which a lower court judicial nomination has been received by the president.
“A senator returning the blue slip to the Senate Judiciary Committee chair indicates that the senator has no issue with the nominee, in which case the committee chair will often take steps to initiate committee proceedings on the nomination. A senator withholding his or her blue slip, however, indicates that the nominee does not have the senator's approval, in which case proceedings may be delayed indefinitely.”
The impact of an unreturned blue slip hinges heavily on the attitude and motivations of the committee chairman. It can either be a serious strike against the nomination, or it can be the death knell.
During the 22 years that Mississippi’s James Eastland chaired the committee, it was a death knell. That’s because he and other fellow white Southerners used the process to try to thwart racial desegregation by blocking the nomination of judges who might be sympathetic to the civil rights movement.
Ultimately the strategy failed, and most of the Senate Judiciary chairmen since Eastland have been disinclined to give home-state senators absolute veto power over judicial appointments. The current chairman, Democratic Sen. Dick Durbin of Illinois, is being encouraged to overlook Hyde-Smith’s opposition and hold a hearing on Colom’s nomination.
That is the fair thing to do, not just to Colom but to Mississippi’s other senator, Roger Wicker, who is in favor of the nomination.
Let the Judiciary panel hear the arguments, pro and con, for Colom and decide whether to send his name on for a full vote of the Senate. That hearing would give those who think he is fit for the bench and those who don’t equal opportunity to make their case. Colom’s nomination still might be defeated, since lawmakers tend to give great deference to their colleagues, and having a home-state senator opposed is going to carry significant weight.
But at least Colom would be given the benefit of an open forum and the chance to fully respond to Hyde-Smith or any others opposed to his nomination.
The Constitution — in one of its provisions designed to keep the presidency from turning into a tyranny — gave the Senate the power of determine the ultimate fate of presidential appointments. The doctrine of “advice and consent,” though, is perverted when one senator out of 100 can block a nomination.
The senator, in that case, becomes the tyrant.
