Where do institutions come from? Exploring the origins of the senate blue slip

Studies in American Political Development

Volumn 21, Issue 1, 2007, Pages 1-15

  Binder, Sarah A ^a  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 34248141840     PISSN: 0898588X     EISSN: 14698692     Source Type: Journal    
DOI: 10.1017/S0898588X07000119     Document Type: Article

References (70)

1. See Sheldon Goldman, Picking Federal Judges (New Haven, CT: Yale University Press, 1997);
2. and Sarah A. Binder and Forrest Maltzman, "The Limits of Senatorial Courtesy," legislative Studies Quarterly 29 (2004): 5-22.
3. Kermit Hall, The Politics of Justice: Lower Federal Judicial, Selection and the Second Party System, 1829-1961 (Lincoln: University of Nebraska Press, 1979).
4. Judiciary Committee Staff to Senator Kennedy, Re: senatorial courtesy, 22 Jan. 1979, in U.S. Senate, Committee on the Judiciary, Selection and Confirmation of Federal Judges, Hearing, 96th Cong., 1st Sess., 25 Jan. 1979, pt. 1.
5. For example, see Brannon Denning, "The 'Blue Slip': Enforcing the Norms of the Judicial Confirmation Process," William and Mary Bill of Rights Journal 19 (2001): 75-102;
6. and Benjamin Wittes, Confirmation Wars: Preserving Independent (hurts in Angry Times (Lanham, MD: Rowman and Littlefield, 2006).
7. See Elliott Slotnick, "Reforms in Judicial Selection ; Will They Affect the Senate's Role?" Judicature 64 (1980): 60-73.
8. Joseph Harris, The Advice and Consent, of the Senate (Berkeley: University of California Press, 1953), 224.
9. On the pronounced effect of the blue slip in periods of divided government, see Binder and Maltzman, "Limits of Senatorial Courtesy."
10. Sec Michael W. Giles, Virginia A. Hettinger, and Todd Peppers, "Picking Federal Judges: A Note on Policy and Partisan Selection Agendas," Political Research Quarterly 54 (2001): 623-41.
11. See Lewis A. Froman Jr., "Organization Theory and the Explanation of Important Characteristics of Congress," American Political Science Review 62 (1968): 518-26.
12. See Sarah A. Binder and Forrest Maltzman, "Senatorial Delay in Confirming Federal Judges, 1947-1998," American Journal. of Political Science 46 (2002), 190-9.
13. See Binder and Maltzman, "Limits of Senatorial Courtesy."
14. For example, see Sarah A. Binder, Minority Rights, Majority Rule (New York: Cambridge University Press, 1997);
15. and Douglas Dion, Turning the legislative Thumbscrew (Ann Arbor: University of Michigan Press, 1997).
16. See Jack Knight, Institutions and Social Conflict (New York: Cambridge University Press, 1992).
17. Goldman, Picking Federal Judges.
18. Raymond L. Solomon, "The Politics of Appointment and the Federal Courts' Role in Regulating America: U.S. Courts of Appeal Judgeships from T.R. to F.D.R.," American Bar Foundation Research Journal, 9 (1984): 285-344.
19. Ibid., 314-20.
20. E. E. Schattschneider, The Semi-Sovereign People: A Realist's View of Democracy in America (New York: Holt, Reinhart, and Winston, 1960).
21. Marcia Coyle, "Awaiting Fate of the 'Filibuster 10'," The National Law Journal, 15 Nov. 2004.
22. See Harris, Advice and Consent,
23. and Harold Chase, Federal Judges: The Appointing Process (Minneapolis: University of Minnesota Press, 1975). Although Chase is likely referring to the blue slip when he states that the "committee automatically checks with the senators of the state where the nominee will hold his post"; however, he does not discuss the practice further
24. (ibid., 20).
25. Alan Neff, U.S. District Judge Nominating Commissions: Their Members, Procedures, and Candidates (Chicago, IL: American Judicature Society, 1981), 146.
26. "Letter to Senator Kennedy from Judiciary Committee staff re senatorial courtesy, Jan. 22, 1979," as published in the appendix to Selection and Confirmation of Federal Judges, Hearing before the Committee on the Judiciary, United States Senate, 96th Congress, 1st session, GPO 1979.
27. Richard Madden, "Javits Delaying A Judgeship Here," Now York Times, 14 Dec. 1967," 82.
28. Obnoxious indeed. The nominee, former Texas Governor James Allred, had resigned a federal district judgeship to run against O'Daniel. Allred's subsequent nomination to the 5th Circuit Court of Appeals was said to be a "'political payoff' for his attempt to unseat the Anti-New Deal Democrat [O'Daniel]" ("O'Daniel considers Allred 'Obnoxious'," Washington Post, 16 Mar. 1943, 8).
29. The first negative blue slip - or at least the first failure to return the blue slip to the committee - by an opposition party senator appears to have occurred in 1926. Republican Calvin Coolidge's nomination of William Josiah Tilson was reported adversely from the Judiciary Committee in June 1926, and, though he received two recess appointments to the Middle District of Georgia, Tilson was never confirmed. Both senators from Tilson's home state of Georgia were Democrats.
30. National Archives and Records Administration (NARA), Record Group (RG) 46, Records of the U.S. Senate, Committee on the Judiciary (hereafter NARA: SJC).
31. Under S. Res. 464 (96th Cong.), Senate committees have the authority to restrict access to records of individuals for fifty years. As a result, the nomination files for every nominee referred to the Senate Judiciary Committee between 1956 and the present are sealed by order of the Judiciary Committee.
32. Based on the nomination files, Mitchell Sollenberger dates the origins of the blue slip to 1917 ("The History of the Blue Slip in the Senate Committee on the Judiciary, 1917-Present," CRS Report for Congress, RL32013 [2003.]).
33. According to Sollenberger, the format of the blue slip remained unchanged between 1917 and 1922. At that time, a dead-line (seven days from a senator's receipt of the blue slip) was added for senators to return the blue slip. In addition, because Charles Culberson (D-TX) chaired the committee in the 63rd, 64th, and 65th Congresses, one can infer that the blue slips from the 65th (Figure 2, above) closely resemble those used in the 63rd. By no later than the 65th Congress, the slips were printed on blue stock, thus earning the "blue slip" handle.
34. Blue Slip, George W. Jack Nomination Folder, 65th Cong., NARA: SJC.
35. See William Ross, A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890-1937 (Princeton, NJ: Princeton University Press, 1994);
36. and Howard Gillman, "How Political Parties Can Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875-1891," American Political Science Review 96 (2002): 511-24.
37. On the 1913 Senate reforms, see Gerald Gamm and Steven S. Smith, "Policy Leadership and the Development of the Modern Senate," in Party, Process, and Political Change in Congress, ed. David W. Brady and Mathew D. McCubbins (Palo Alto, CA: Stanford University Press, 2002) ;
38. and Walter Oleszek, "John Worth Kern: Portrait of a Floor Leader," in First Among Equals: Outstanding Senate Leaders of the Twentieth Century, ed. Richard A. Baker and Roger H. Davidson (Washington, DC: Congressional Quarterly, 1991).
39. See Scott C. James, Presidents, Parties, and the State (Cambridge: Cambridge University Press, 2000).
40. On Wilson 's approach to filling the federal courts, see Ross, Muted Fury,
41. and Solomon, "Politics of Appointment."
42. On committee membership, see David Canon, Garrison Nelson, and Charles Stewart, "Historical Congressional Standing Committees, 1st to 79th Congresses, 1789-1947," Senate/63rd Congress, http://web.mit.edu/17.251/ www/data_pgae.html (accessed 9 Nov. 2006), Augustus Bacon (D-GA) died in office, and was replaced on the committee by Fellow Georgia Democrat, Hoke Smith. Note also that the that the Judiciary Committee's Dixiecrat bias was more than a simple reflection of the prevailing ratios on Senate committees. In fact, 60 percent of Appropriations Democrats hailed from the south, while only 35 percent of Finance Committee Democrats came from the south. Moreover, only 45 percent of 63rd Congress Democrats were from the deep south (plus Tennessee).
43. See James, Presidents, Parties, and the State.
44. On Wilson's relations with southern legislators, see C. Vann Woodward, Origins of the New South, 1877-1913 (Baton Rouge: Louisiana State: University Press, 1951);
45. Elizabeth Sanders, Roots of Reform: Farmers, Workers, and the American State, 1877-1917 (Chicago: University of Chicago Press, 1999)
46. and James, Presidents, Parties, and the State.
47. See James, Presidents, Parties, and the State, 185-87.
48. See Franklin Burdette, Filibustering in the Senate (Princeton, NJ: Princeton University Press, 1940), chap. 4.
49. See Gerald Gamm and Steven S. Smith, "The Rise of Floor Leaders in the United States Senate, 1890-1915," paper presented at the Conference on Party Effects in the U.S. Senate, Duke University, 7-8 Apr. 2006.
50. See Donald Ritchie, ed., Minutes of the U.S. Senate Democratic Conference: 1903-1964, (Washington, DC: U.S. Government Printing Office, 1998), 79.
51. "Democrats Agree to Lobby Inquiry," New York Times, 29 May 1913, 1.
52. Ibid.
53. See Jason Roberts and Steven S. Smith, "The Evolution of Agenda-Setting Institutions in Congress: Path Dependency in House and Senate Institutional Development," in Process, Party, and Policy Making: New Advances in the Study of the History of Congress, ed. David W. Brady and Mathew D. McCubbins, (Palo Alto, CA: Stanford University Press, forthcoming). A UCA sets the parameters for floor debate and schedules floor votes for legislative measures and nominations on the Senate floor. Given the lack of a majority cloture rule (or, before 1917, any cloture rule), unanimous consent of all senators was required to set the parameters of floor debate and to schedule votes.
54. In this context, adoption of the blue slip offers a prime example of institutional development resulting from layers of reforms. On this, see Eric Schickler, Disjointed Pluralism (Princeton, NJ: Princeton University Press, 2001).
55. See Nelson W. Polsby, "The Institutionalization of the House of Representatives," American Political Science, Review 62 (1968): 144-68;
56. Gregory Wawro and Eric Schickler, Filibuster: Obstruction and Lawmaking in the, U.S. Senate (Princeton, NJ: Princeton University Press, 2006);
57. and Eric Rauchway, "The Transformation of the Congressional Experience," in The American Congress, ed. Julian E. Zelizer (Boston: Houghton Mifflin Co., 2004).
58. Senate Executive Journal, 65th Cong., 1st Sess., 24 Apr. 1917.
59. Hardwick dutifully returned a blue slip with his positive endorsement. Smith again did not appear to return his blue slip, leading the committee to note on the transmittal paper for the nomination that the nomination of Beverly Evans was "authorized to be reported favorably by Senator Fletcher . . . in case word comes from Senator Smith of Georgia that he has no objection" (see Beverly D. Evans Nomination Folder, NARA: SJC).
60. Paul Pierson, Politics in Time: History, Institutions, and Social, Analysis (Princeton, NJ: Princeton University Press, 2004), 104.
61. Barry R. Weingast and William Marshall, "The Industrial Organization of Congress," Journal of Political Economy 96 (1988): 132-63.
62. Barry R. Weingast, "Rational Choice Institutionalism," in Political Science: The State of the Discipline, ed. Ira Katznelson and Helen V. Milner (New York: Norton, 2002), 670.
63. Edward Sait, Political Institutions: A Preface (New York: Appleton-Century, 1938), 529.
64. See also Kathleen Thelen, How Institutions Evolve: The Political Economy of Skills in Germany, Britain, the United States, and Japan (New York: Cambridge University Press, 2004).
65. With the rising salience of judicial nominations to party agendas, respect for the norm might be eroding. In 2003, the Senate Judiciary Committee chair went ahead with a judicial nomination hearing on a 6th Circuit nominee even though two negative blue slips had been returned by the Michigan senators, See Jennifer Dlouhy, "Blue Slip or Not, Hatch Holds Judiciary Panel Hearing on Bush Court Nominee," CQ Today, 30 Jul. 2003. For a broader assessment of the blocking power of home state senators,
66. see David Primo, Sarah A. Binder, and Forrest Maltzman, "Who Consents? A Theoretical and Empirical Examination of Pivotal Senators in Judicial Selection," (unpublished ms., 2006, hltp://www.rochester.edu/ college/psc/primo/pbmpivotal.pdf (accessed January 19, 2007).
67. See Binder and Maltzman, "Limits of Senatorial Courtesy,"
68. and "Senatorial Delay."
69. Froman, "Organization Theory," 523.
70. Tamar Jacobi, "The Senatorial Courtesy Game: Explaining the Norm of Informal Vetoes in Advice and Consent Nominations," Lagislative Studies Quarterly 30 (2005): 193-217.