Blue slip process Sen. Hyde-Smith used to block federal judge began as an effort to preserve Jim Crow

by Bobby Harrison, Mississippi Today
April 11, 2023

The “blue slip” process Sen. Cindy Hyde-Smith is using to block the nomination of Scott Colom of Columbus to the federal judiciary began under a previous Mississippi senator who used the process to discriminate against Black Americans.

Starting in the 1950s, U.S. Sen. James Eastland of Mississippi was the first Senate Judiciary Committee chair to use the process to allow a single home-state senator to block a presidential nominee to the federal bench. Eastland used the process to block federal judges from being appointed in Southern states sympathetic to school desegregation, according to multiple accounts detailed in news stories and scholarly research articles.

A broad range of groups agree on Eastland’s role in the blue slip process.

In 2017, during his time as Senate Judiciary chair, conservative Sen. Chuck Grassley, a Republican from Iowa, wrote, “For the vast majority of the blue slip’s history, a negative or unreturned blue slip did not stop the Senate Judiciary Committee from holding a hearing and vote on a nominee. In fact, of my 18 predecessors as chairman of the committee, only two allowed home-state senators unilateral veto power through the blue slip. The first to do so, Sen. James Eastland (D-Miss.), reportedly adopted this policy to thwart school integration after the Supreme Court’s decision in Brown v. Board of Education.”

The progressive organization People for the American Way said Eastland’s actions “gave immense power to segregationist senators in Southern states to prevent judges who would take civil rights seriously.”

The process allows a single home-state senator to block the Senate confirmation of judicial nominees by not returning the “blue slip” voicing support. Under the current process, nominees to district courts, such as Colom to the Northern District of Mississippi, can be blocked but not nominees to the U.S. Court of Appeals. The way Eastland applied the process, nominees to both were blocked.

Sen. Roger Wicker, Mississippi’s senior U.S senator, returned his blue slip for Colom.

Various progressive groups are calling for current Judiciary chair, Democratic Sen. Dick Durbin of Illinois, to stop allowing the blue slip process to be used to block judicial nominees. A spokesperson for Durbin told Mississippi Today that the chair was “extremely disappointed” in Hyde-Smith’s actions and would be commenting “more fully” on those actions in the coming days.

Durbin, in the statement, called Colom “highly qualified.”

READ MORE: Senate chairman ‘extremely disappointed’ by Hyde-Smith’s effort to block judicial nomination

According to various accounts, starting sometimes in the 1910s, the blue slip process was initiated to give home-state senators more of a voice in the nomination and confirmation process. But it was not until Eastland in 1956 that the process was used to allow home-state senators to completely block the nominations. Under Eastland, if a blue slip was not returned, the Judiciary Committee normally would not even have a hearing on the nominee.

Under the process before Eastland, nominees opposed by a home-state senator normally still would receive a full vote before the Senate, but with a negative recommendation from the Judiciary Committee.

In a paper titled “The Collision of Institutional Power and Constitutional Obligations: The Use of Blue Slips in the Judicial Confirmation Process,” professors from Georgia, Michigan State and Wisconsin wrote, “When Senator Eastland took over as Judiciary chair (1956-1978), he significantly changed blue slipping policy. During his tenure, a negative blue slip or unreturned blue slip from a single home-state senator blocked any further action on the nomination. Why Eastland changed blue slipping policy is unclear, though racial politics likely had something to do with it, as Eastland could use committee rules to block pro-civil rights nominees from reaching the bench … While later Judiciary chairs would also alter their treatment of negative blue slips depending on political context, a single blue slip continues to impose a strong and negative effect on any nomination’s chance of success.”

Most Judiciary chairs since Eastland, including Democrats Joe Biden and Ted Kennedy and Republicans Orrin Hatch and Strom Thurmond, did not allow the process to be used as an absolute where one home-state senator could stop a nominee. Both political parties, though, have used the blue slip to prevent presidents from the other party from getting judicial appointments.

Hyde-Smith currently is blocking the nomination of Colom, the first African American elected as district attorney for the 16th District in north Mississippi. She cited Colom’s opposition to legislation to ban trans women from competing in women’s sports as a reason for opposing him.

While Colom has voiced general support for trans rights, he has never publicly commented on the issue of trans women competing in women sports.

Hyde-Smith also said she opposed Colom because a political action committee funded at least in part by billionaire George Soros spent funds on his first election to the office of district attorney in 2015. Soros, a New York billionaire, has supported criminal justice reform and other issues such as governmental transparency.

Colom did not receive any financial help from Soros in 2019.

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.