Democrats: Ignore ‘blue slip' custom to get federal vacancies filled in Republican states like Mississippi

by Anna Wolfe, Mississippi Today
February 1, 2023

U.S. Rep. Bennie Thompson, D-Miss., and other Democrats in Washington are urging President Joe Biden to send federal appointments for the U.S. Senate's approval, regardless of prior consent from senators in the nominees' respective states.

Biden would have to ignore a longstanding tradition called “blue slips” – forms that senators submit to the Senate Judiciary Committee to affirm they'll vote to approve the president's candidates for vacancies in their home state.

This matters most in states with one or more Republican senators who are withholding their blue slips, stalling Biden's nominations from moving through confirmation.

“It's a custom rather than anything that's in law. So it's really a gray area. And in this instance, people who support Democrats are getting penalized in this process,” Thompson, the only Democrat in the state's congressional delegation, told Mississippi Today on Tuesday.

Mississippi has five federal vacancies. In the fall, Biden made nominations for four of the positions – federal judge for the Northern District, U.S. attorney for the Southern District and two U.S. marshals – but Sens. Roger Wicker and Cindy Hyde-Smith did not return blue slips for any of them. Biden had to recently reissue the nominations, along with dozens more in other states, to the current Congress on Jan. 23. Biden has not made a nomination for the U.S. attorney in the Northern District.

Biden's nominations include Scott Colom, a district attorney in north Mississippi, for the U.S. district judge in the Northern District; Todd Gee, deputy chief of the Public Integrity Section of the U.S. Department of Justice, for U.S. attorney in the Southern District; Dale Bell for U.S. marshal in the Southern District; and Michael Purnell for U.S. marshal in the Northern District.

Gee, a Vicksburg native, would oversee the office currently prosecuting the Mississippi welfare fraud case involving the misspending or theft of at least $77 million in federal funds intended to serve the poor.

Colom, a Columbus resident, has been the district attorney for the 16th Judicial District, which consists of Lowndes, Oktibbeha, Noxubee and Clay counties, since 2016. He previously worked for the Mississippi Center for Justice and was a municipal court judge.

Wicker has voiced his support for Colom, but that does not appear to have hastened the confirmation process for the district attorney.

“All of a sudden, people who build a career, do what's right in the community, exhibit leadership traits that other people can identify with, and get an opportunity to be elevated to a higher level based on the hard work that they've done over their careers, and politics denies them of that opportunity,” Thompson said. “And we are a better country than that.”

A spokesperson for Wicker would not say whether the senator supported Biden's nominations, directing Mississippi Today's questions to the White House and Senate Judiciary Committee. Hyde-Smith's office did not return Mississippi Today's email Tuesday.

The White House did not respond to an email Wednesday.

There is no official rule or procedure in Congress requiring the use of blue slips, Thompson said.

And there is some precedent for rejecting the custom. President Donald Trump did away with blue slips for his judicial appointments to circuit courts of appeals, the second highest courts behind the U.S. Supreme Court.

“My personal view is that the blue slip, with regard to circuit court appointments, ought to simply be a notification of how you're going to vote, not the opportunity to blackball,” then-Senate Majority Leader Mitch McConnell, R-Ky., said in a 2017 interview with The New York Times.

In remarks on the Senate floor Tuesday, Minority Leader McConnell ridiculed Biden's judicial nominees.

Some Democrats are arguing that the president's party should not use the failure of Republican senators to return blue slips as a reason to become complacent about unfilled vacancies.

“I think they (Democrats) have basically allowed the custom to get in the way of excellent people being able to serve in those prestigious positions,” Thompson said. “I think they are acquiescing to an arcane custom that, in this instance, has no basis in law to start with.”

Nationally, discussion around stalled federal appointments has focused on judicial vacancies, considering the power that these lifetime appointments hold in shaping legal precedent and influencing public policy. Currently there are 88 total judge vacancies and 41 pending nominations.

But the U.S. attorney and U.S. marshal vacancies are consequential in their own right.

Thompson backs the nomination of Gee, who previously served as lead counsel on the House Homeland Security Committee that Thompson chaired.

If confirmed, Gee will inherit Mississippi's blockbuster welfare scandal, in which two key defendants have pleaded guilty and flipped to aid the prosecution.

But since the initial arrests in 2020, federal authorities have not criminally charged any additional people. Sources close to the probe have questioned whether the U.S. Attorney's Office is likely to take the step of charging new figures in the case before gaining a permanent leader.

And yet, when asked about the welfare investigation, Wicker told WLOX in August, “It's not something I can have any effect on in Washington.”

“This is a state matter,” Wicker said in the WLOX report, which was following Mississippi Today's reporting about Gov. Tate Reeves' connections to welfare purchases targeted in ongoing civil litigation. “It's just not something that I'm really qualified to talk about.”

Last year, Thompson wrote a letter to the U.S. Department of Justice, following the revelations in Mississippi Today's series “The Backchannel,” urging federal authorities to investigate former Gov. Phil Bryant's role in welfare misspending.

“The Backchannel” revealed for the first time that welfare payments made to former NFL quarterback Brett Favre's pharmaceutical company Prevacus – the Florida company at the center of the initial criminal indictment – were made in plain sight of Bryant, and that Bryant even agreed to accept stock in the company after leaving office.

While the 2020 charges by Hinds County District Attorney Jody Owens described illegal activity regarding investments into the drug company, officials concealed information about Bryant's involvement from the public until Mississippi Today published private text messages between Bryant, Favre and the founder of Prevacus last April.

“The fact that 100% of the TANF monies involved were federal monies means that the U.S. Attorney's Office should have been aggressively prosecuting those individuals. And that has not been the case,” Thompson said. “They have actually deferred to the state office to handle federal prosecutions. And there's a question as to whether or not Hinds County has the resources to pursue all of the areas necessary in that suit. I'm convinced that the investment of those TANF monies that went into the Florida drug company really need to be pursued. But you've got to have the staff on board or the reach, like a U.S. attorney's office in Florida, to pass it off with the FBI and others to investigate it and bring it back. I'm just not certain that a local district attorney's office has the reach or the finances … to give it what it needs.”

While the local district attorney's office is still a partner in the ongoing investigation, the U.S. Attorney's Office in the Southern District is the lead prosecutor. It is the office that most recently secured a guilty plea on new federal charges against the former welfare director, John Davis, in September.

But more than two years into Biden's administration, the office still lacks a permanent leader at its helm.

“It means that the single largest criminal action that occurred in our state is being haphazardly pursued in a manner that all the people who are guilty and involved, potentially, will never get brought to trial, because of that lack of leadership in the Southern District office,” Thompson said.

“Look, if we can prosecute single women in Mississippi for food stamp fraud, surely we can prosecute everybody involved in a multimillion dollar scam of federal funds,” he added.

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