An Anachronism of Obstruction: Why Federalist No. 77 and Modern Senate Procedure Demand the Abolition of the Blue Slip

The U.S. Constitution creates a two-step process for appointing federal judges. The President first nominates a candidate. Then, the Senate provides its “Advice and Consent.”¹

In The Federalist Papers, Alexander Hamilton defended this structure. He argued it was designed to promote merit, ensure accountability, and check the abuse of power.² A close examination of his arguments reveals a problem. The modern Senate “Blue Slip” process is not a benign courtesy; it is a profound distortion that subverts these core principles.¹

This analysis will demonstrate that the Blue Slip is an unconstitutional and detrimental practice that must be abolished. This paper will proceed in three parts.

1. It will examine Hamilton’s original intent for the appointments process.
2. It will trace the Blue Slip’s historical perversion from a senatorial courtesy into a partisan weapon.
3. Finally, it will demonstrate the practice’s irreconcilability with modern Senate procedure.

Section I: The Constitutional Architecture of Appointments: Hamilton’s Vision in Federalist 76 & 77

Alexander Hamilton’s defense of the Appointments Clause rested on two core arguments. First, he argued that vesting nomination power in a single executive would promote merit and ensure clear accountability. Second, he believed that requiring the consent of the collective Senate would serve as a powerful, deliberative check against favoritism and unfit characters.²

The Blue Slip process corrupts both of these foundational principles. It achieves this by granting a de facto veto to an individual senator.¹

The President as Sole Nominator: A Bulwark Against Faction and a Locus of Accountability

In Federalist No. 76, Hamilton argued that vesting the power of nomination in a single executive is superior to lodging it in a collective body like the Senate.² He posited that “one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment”.²

This is because the “sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation”.² The President, acting alone, is uniquely accountable for the quality of a nominee.

This vision is directly undermined by the Blue Slip. The process shatters this singular line of accountability. It grants an individual senator a de facto veto, which diffuses responsibility. This makes it impossible for the public to determine the true cause of a judicial vacancy. Is it a presidential failure or a single senator’s undisclosed obstruction?¹

Hamilton also argued that a single executive would have “FEWER personal attachments to gratify.”² The President’s national constituency was meant to insulate the nomination process from narrow, parochial concerns. The Blue Slip directly re-injects these very interests into the process. It empowers a single senator to block a nominee based on state-level politics, personal animosity, or patronage.¹, ⁴

This leads to a fundamental inversion of the constitutional sequence of appointment. Article II, Section 2 is unambiguous: Presidential nomination precedes Senate consent.¹ The Blue Slip, when treated as a veto, forces the President to seek the approval of home-state senators before a nomination is formally made.⁵, ⁶

The Constitutional Inversion

• Original Design: Presidential Nomination → Senate Consent
• Blue Slip Reality: Senatorial Pre-Approval → Presidential Nomination

Former Attorney General Robert F. Kennedy aptly described this distortion. He called it “senatorial appointment with the advice and consent of the president,” a pithy summary of the constitutional role-reversal the Blue Slip engenders.⁷

The Senate as a Collective Check: A “Salutary Restraint,” Not an individual Veto

Hamilton did not envision the Senate’s role as passive. He explained its function was to serve as “an excellent check upon a spirit of favoritism in the President” and to “prevent the appointment of unfit characters”.² This check, however, was conceived as a corporate, deliberative function of the entire Senate. It was not the unilateral prerogative of one or two members.

In stark contrast to the Blue Slip’s individual veto, Hamilton predicted the Senate’s power would exert a “powerful, though, in general, a silent operation”.², ⁸ The mere possibility of rejection by the full Senate would be a “strong motive to care in proposing” nominees.² This “salutary restraint” is far from the Blue Slip’s loud and absolute veto, which can be exercised preemptively and without public justification.¹, ⁸

Hamilton feared that legislative appointments would devolve into a “full display of all the private and party likings and dislikes,” where “the intrinsic merit of the candidate will be too often out of sight”.² The Blue Slip takes this fear to its logical extreme. It empowers the very behavior Hamilton sought to constrain. The Constitution’s check on a president’s potential for poor judgment was the Senate—a large, diverse, and deliberative body. It was not meant to be another single individual acting on personal or parochial grounds.

The Condemned Precedent: The New York Council of Appointment as a Mirror to the Blue Slip

In Federalist No. 77, Hamilton provided a powerful contemporary analogy that serves as a damning indictment of the modern Blue Slip: the Council of Appointment in New York. He excoriated this small group. It made appointments “shut up in a private apartment, impenetrable to the public eye.” He called it a “conclave, in which cabal and intrigue will have their full scope”.³, ⁸ His chief complaint was its opacity. He wrote that “it is not known to what extent, or in what manner” the governor exercises his nomination power, “nor upon what occasions he is contradicted or opposed”.⁸

This critique perfectly mirrors the function of the Blue Slip. A senator can kill a nomination simply by withholding the form, often without providing any public rationale.¹, ¹⁰ This secrecy makes it impossible to hold officials accountable. The Blue Slip allows a senator to block a nominee for reasons of pure patronage or partisan obstruction, while judicial vacancies languish.¹, ⁸ Hamilton praised the proposed federal system because Senate confirmation would turn appointments into “matters of notoriety,” allowing the public to form an opinion.³ The Blue Slip achieves the opposite.

The Misinterpreted “Stability of Administration” in Federalist 77

Proponents of senatorial power sometimes point to a passage in Federalist No. 77. There, Hamilton suggests that requiring Senate consent to “displace as well as to appoint” would “contribute to the stability of the administration”.⁴, ⁸ This argument is profoundly misapplied in defense of the Blue Slip.

Hamilton’s concern was preventing a “violent or so general a revolution in the officers of the government” each time a new President took office.⁴ His focus was on ensuring continuity. It is a severe misreading to twist this principle into a justification for an individual senator to create instability by indefinitely blocking a judicial appointment.

In practice, the Blue Slip achieves the precise opposite of a “steady administration.” It creates long-term, strategic vacancies. This undermines judicial efficiency, creates backlogs, and injects partisan instability into the judiciary.¹, ⁹

Section II: The Blue Slip: An Extra-Constitutional Accretion of Senatorial Power

Beyond its constitutional flaws, the Blue Slip lacks historical legitimacy. It has evolved from an informal courtesy into a partisan weapon stripped of any claim to principled tradition. Its authority derives not from the Constitution, but from the arbitrary will of the Senate Judiciary Committee’s chair.

From Informal “Courtesy” to a Procedural Weapon

The historical record reveals two distinct phenomena. These are often conflated to create a false sense of legitimacy for the Blue Slip.

The first is “senatorial courtesy.” This informal, unwritten custom of collegial deference emerged in the Senate’s earliest days. Its origin is traced to 1789, when the Senate rejected President George Washington’s nomination of Benjamin Fishbourn at the urging of a Georgia Senator.⁵, ⁷ The practice involved senators voting against a nominee if a home-state colleague declared that individual “personally obnoxious”.⁵, ⁶

The second, entirely separate, phenomenon is the Blue Slip itself. This physical, blue-colored form was not introduced until 1917, more than 125 years after the Fishbourn incident.¹⁰, ¹¹, ¹² The modern Blue Slip’s power as a veto stems from a modern committee chair’s unilateral decision to grant it that power.

The Perversion of Purpose: Weaponization for Obstruction

The Blue Slip’s history is irrevocably stained by its use as a tool of racial obstruction. In 1956, following the Supreme Court’s decision in Brown v. Board of Education, staunch segregationist Senator James O. Eastland of Mississippi became chairman of the Judiciary Committee.¹ He immediately transformed the Blue Slip from a consultative courtesy into an absolute veto.¹

This was a deliberate political strategy. It was designed to empower southern senators. They could then block any judicial nominee who might enforce desegregation and other civil rights laws.¹ Since the pace of integration was left to district court judges, Eastland’s policy gave segregationist leaders a powerful tool to halt progress.¹

A “Tradition” of Inconsistency: The Arbitrary Power of the Chair

The Blue Slip’s chaotic and self-serving application provides compelling evidence that it is not a principled tradition. The practice is not codified in Senate or committee rules. Therefore, its power rests entirely with the Judiciary Committee chair. The chair can strengthen, weaken, or ignore it at will.¹, ¹⁰

The most glaring example of this hypocrisy is the dramatic shift in Republican policy between the Obama and Trump administrations. During the Obama presidency, Republicans used a strict Blue Slip policy to block dozens of nominees, leaving over 100 vacancies.⁹ Yet in 2017, with a Republican in the White House, the committee chair abolished the Blue Slip tradition for circuit court nominees to ensure President Trump’s appointments could advance.¹, ¹⁰ This history proves the Blue Slip is not a revered “tradition” but a partisan lever.

The following table graphically illustrates the inconsistent and politically motivated application of the Blue Slip by successive Judiciary Committee chairs, dismantling any claim of principled tradition.¹, ¹¹

Chair (Party-State)	Years of Chairmanship	Stated Policy for District & Circuit Court Nominees	Notable Exceptions/Changes
James O. Eastland (D-MS)	1956–1978	Strict Veto: Required two positive blue slips for a hearing.	Policy instituted to block pro-integration judicial nominees.¹
Ted Kennedy (D-MA)	1979–1981	Weakened Veto: A negative slip would not necessarily prevent committee action; the full committee could vote to proceed.¹	First significant change after the Eastland era, moving away from an absolute individual veto.
Strom Thurmond (R-SC)	1981–1987	Differentiated Veto: A returned negative slip was a veto, but an unreturned slip was not.¹	Ignored his own policy to advance a Reagan nominee over a negative blue slip in 1983.¹
Joe Biden (D-DE)	1987–1995	Consultative Model: One negative slip was a “significant factor” but not a veto, unless the White House failed to consult.¹, ¹¹	First chair to issue a formal written statement on the policy, enhancing transparency.¹
Orrin Hatch (R-UT)	1995–2001; 2003–2005	Alternating Policy: Enforced a strict two-slip veto under Clinton, but reinstituted Biden’s more lenient policy under George W. Bush.¹¹	Policy shifted based on which party controlled the White House, highlighting its partisan utility.
Patrick Leahy (D-VT)	2001–2003; 2007–2015	Strict Veto: Consistently required two positive blue slips for both Bush and Obama nominees.¹, ¹¹	Maintained a consistent standard across administrations of different parties.
Arlen Specter (R-PA)	2005–2007	Split Policy: A negative slip halted district court nominations but not circuit court nominations.¹¹	First formal differentiation in policy between district and circuit courts.
Chuck Grassley (R-IA)	2015–2019	Split Policy: Maintained strict veto for Obama’s nominees. In 2017, abolished the blue slip tradition for circuit court nominees for Trump.¹, ¹⁰	The clearest example of the policy being altered for purely partisan advantage.
Dick Durbin (D-IL)	2021–Present	Split Policy: Follows the precedent of applying the blue slip tradition to district court nominees only.¹	Continues the split policy established by his Republican predecessors.

Section III: The Blue Slip’s Irreconcilability with Modern Legal and Procedural Standards

The Blue Slip has been rendered a constitutional and procedural anachronism by the Senate’s own evolution. A fundamental tension now exists between the Blue Slip’s individual veto power and the majoritarian principles that govern judicial confirmations. The responsibility for reform lies solely with the Senate itself.

The Majoritarian Imperative: The ‘Nuclear Option’ and the End of Supermajority Requirements

For decades, the judicial confirmation process was constrained by the filibuster. This procedural tactic effectively required a 60-vote supermajority to end debate on a nominee.¹², ¹³ The Senate, however, has twice dismantled this framework in favor of majority rule.

• In 2013, Senate Democrats used the “nuclear option” to eliminate the 60-vote requirement for all judicial nominees except for the Supreme Court.¹², ¹³
• In 2017, Senate Republicans used the same procedure to extend the simple majority standard to Supreme Court nominees.¹², ¹³

These actions fundamentally affirmed the principle of majority rule for judicial confirmations. This shift aligns more closely with the spirit of collective judgment Hamilton envisioned, standing in stark contrast to the Blue Slip’s individual veto.

This creates a state of profound procedural dissonance. The system is procedurally incoherent and constitutionally absurd. A single senator can unilaterally block a nominee from even receiving a committee hearing. Yet, the final confirmation of that same nominee requires only a simple majority of 51 senators on the floor. This dissonance undermines the legitimacy of the entire process.

The Motion to Discharge: A Flawed Affirmation of Majority Control

The Senate’s own rules contain a formal procedure that affirms the ultimate authority of the full chamber: the Motion to Discharge. This process allows the Senate to remove a nomination from a committee that has failed to act.¹⁴

This motion’s existence is a direct counter-argument to the Blue Slip’s perceived necessity. It highlights that the Senate already has a formal mechanism to overcome committee inaction. Its availability demonstrates a core principle: the will of the Senate majority is superior to the inaction of a committee.¹⁴

A powerful modern precedent was set in 2022 with the nomination of Ketanji Brown Jackson to the Supreme Court. The Judiciary Committee deadlocked on her nomination. The full Senate then successfully passed a motion to discharge her nomination, allowing her to proceed to final confirmation.¹⁵ This event affirmed that the full Senate can and will act when a committee is stalled.

The Non-Justiciability Shield and the Senate’s Duty of Internal Reform

Opponents cannot simply file a lawsuit to have the Blue Slip declared unconstitutional. The practice is shielded from judicial review by the Political Question Doctrine. This doctrine holds that federal courts should refrain from hearing cases on issues the Constitution has textually committed to another branch of government.¹⁶, ¹⁷

The Supreme Court established the modern framework for this doctrine in Baker v. Carr (1962), which outlined six determining factors.¹⁶, ¹⁷ In the 1993 case DeVesa v. Dorsey, the Supreme Court upheld a ruling that senatorial courtesy is a non-justiciable political question.¹⁸ This means the judiciary considers the Senate’s internal rules for providing “Advice and Consent” to be a matter committed to the Senate itself under Article I, Section 5.

This judicial deference is not a stamp of approval. A finding of non-justiciability is not a ruling on the merits. It is a jurisdictional refusal to intervene.¹⁷ The doctrine clarifies that the Senate, and only the Senate, possesses both the power and the solemn duty to correct its own procedures.

Section IV: The Hamiltonian Case for Abolition: Restoring Merit, Accountability, and Constitutional Order

The Blue Slip began as a minor courtesy. It was weaponized to obstruct civil rights. It now persists as a procedurally incoherent tool of partisan obstruction. It directly violates the foundational principles articulated by Alexander Hamilton. The complete and permanent abolition of the Blue Slip is not a radical change, but a necessary restoration of constitutional order.

The Modern Embodiment of Faction and Intrigue

The Blue Slip is the very manifestation of the “private and party likings and dislikes” that Hamilton warned in Federalist No. 76 would eclipse the “intrinsic merit of the candidate”.²

Contemporary examples abound. Highly qualified nominees are blocked for purely partisan reasons. Their fitness is not in question. Instead, the goal is to preserve a judicial vacancy for a future administration from the objecting senator’s party.⁹, ¹⁹, ²⁰ This practice incentivizes senators to prioritize short-term partisan gain over the long-term health and integrity of the federal judiciary.

Realigning Constitutional Accountability

Abolishing the Blue Slip would restore the clear lines of accountability that the Framers intended.

Presidential Accountability

The President would again bear the “sole and undivided responsibility” for the quality of his nominees, as Hamilton argued.² The public could judge him directly on the merits of his choices, without the excuse of a single senator’s obstruction.

Senatorial Accountability

The Senate, as a whole, would be accountable for its collective decision to confirm or reject a nominee. This decision would be made in public, on the record, after a full hearing. This is the public “notoriety” that Hamilton praised in Federalist No. 77, a process that forces the decision into the open for scrutiny.³, ⁸

The Path Forward: Sufficiency of Existing Constitutional Checks

Abolishing the Blue Slip would not leave the Senate powerless. The constitutionally prescribed mechanisms for “Advice and Consent” are more than sufficient.

The Senate Judiciary Committee remains a powerful gatekeeper. Its exhaustive vetting process provides a robust forum for examining a nominee’s qualifications.¹, ²², ²³ A home-state senator’s negative opinion would still carry significant weight, but it would be a factor to be weighed by the entire committee, not an absolute bar.

The ultimate check remains with the full Senate floor debate and vote. Any senator can speak against a nominee and vote against confirmation. With the confirmation threshold now at a simple majority, the process ensures that any nominee who can command majority support will be confirmed. These formal, public, and collective processes are the proper means for the Senate to exercise its duty.

Conclusion: A Return to First Principles

The Blue Slip is an anachronism. It is incompatible with the majoritarian reality of modern confirmations. It undermines the constitutional separation of powers by usurping the President’s power of nomination. It injects parochialism and partisan intrigue into a process Hamilton designed to elevate merit.

The Senate must exercise its constitutional responsibility of self-governance. It is time to abolish this dysfunctional custom. The Senate should relegate the Blue Slip to the “ash heap of history”.²¹ Doing so would be a powerful step toward restoring integrity, efficiency, and constitutional balance to the vital process of staffing the federal judiciary.

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Works Cited

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11. Robbins, Laila. “Blue Slip Blues: 5 Corrections to the Ongoing Debate.” Brennan Center for Justice. June 21, 2017. https://www.brennancenter.org/our-work/analysis-opinion/blue-slip-blues-5-corrections-ongoing-debate
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18. Legal Information Institute, Cornell Law School. “Overview of Political Question Doctrine.” https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/overview-of-political-question-doctrine
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20. Reporter, AP. “Trump and Republican senators fight over ‘blue slip’ process for judicial nominees.” The Independent. October 2, 2024. https://www.independent.co.uk/news/world/americas/us-politics/trump-blue-slip-us-attorney-b2847264.html
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