The Blue Slip and Federalism

There is a new article in the Harvard Law Review on “Partisan Federalism” that argues (to use a Reggie Jackson line from the 1970s) that partisanship is the straw that stirs the states’-rights drink.  In other words, states usually check the federal government only when they are controlled by the party that is out of power in Washington DC.  This is similar to the point made years ago in a different HLR article that separation of powers is a more relevant force when different parties control Congress and the White House.

Consider the “blue-slip” policy for judicial nominations.  The New York Times points out today that the abolition of the filibuster for judges has not led to more or more extreme judicial nominees.  Why?  Because you still need the support of both home-state senators for a judge to be confirmed, and Republican senators often withhold that consent.  The abolition of the filibuster matters only if the nominee is from a state like California where both senators are Democrats or if the nomination is to the DC circuit where there are no senators, but most federal judgeships are not in these places.

The blue-slip is another example of a constitutional custom (or “constitutional etiquette”) that I’m writing about in my next article (I’ll post an abstract this weekend.)  This practice was originally designed to protect state interests, and still serves that function to some extent.  In many cases, though, the blue-slip now serves to enforce an anti-partisan or bipartisan norm.  One party cannot dictate who gets on the bench except at the Supreme Court level.  (An interesting exception worth pondering.)  If President Obama wants to get a district court or circuit court judge in Texas, he needs the approval of Ted Cruz.  And in the states with senators from both parties (like Indiana), some across-the-aisle cooperation is required.

 

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