Fire Grants and Safety Act

Floor Speech

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Mr. THUNE. Mr. President, in January of this year, a former Democratic Senator penned an op-ed urging Democrats to do away with the Senate tradition of blue slips. This was followed within weeks by an editorial from the New York Times and an op-ed in the Washington Post making similar arguments.

While the Democratic chair of the Senate Judiciary Committee has indicated his desire to maintain the blue slip process, talk of abandoning blue slips remains concerning, especially given Democrats' attempt last year to do away with the legislative filibuster, a mainstay of Senate procedure and a guarantor of minority party representation.

Blue slips--so-called because they are literally blue slips of paper requesting perspective on judicial nominees from their home State Senators--are a longtime Senate tradition. They serve the important function of ensuring that Senators are consulted about judicial appointments from their State, and that is particularly relevant when it comes to nominees to serve as Federal district court judges.

The Founders set up the Senate in such a way as to provide a voice for States in the national legislature, and Senators continue to provide a voice for a whole State in a way that a Representative in the House of Representatives does not simply because he or she only represents a single district.

State representation is of particular relevance when it comes to the most numerous type of judicial nominee, and that is Federal district court judges. Unlike circuit court judges or Supreme Court Justices, Federal district court judges are responsible for a limited physical jurisdiction that is entirely contained within a single State, and they are regularly required to interpret State law as well as Federal law. Now, given that fact, Senators, as the representatives of their States, should have a particular say in who will receive a lifetime appointment to interpret their State's laws.

The Constitution gives the President the power to appoint judges by and with the advice and consent of the Senate, and the blue slip process in the Senate encourages Presidents to seek that advice--not to just send a nominee over to the Senate for consideration and vote but to actually discuss a nominee with the relevant home State Senators before sending that name over.

Blue slips also serve as a check on more extreme or problematic nominees, first, by encouraging the President not to nominate excessively controversial candidates, and second, by providing a way for home State Senators to block a nomination for their State if the President does nominate someone problematic.

Senators of both parties regularly return blue slips for judicial nominees; in other words, they sign off on the nomination of judicial nominees who would not be their first choice but whom they recognize as suitable to sit on the bench. When the nominee in question has problems beyond just not being a home State Senator's preference, blue slips have provided a way for Senators of both parties to stop the nomination.

In the pieces that have come out in support of abolishing the blue slip process, I have noticed two strands of thought in particular: one, that things have gotten so partisan that we should just do away with things that are meant to foster bipartisanship, and two, that doing away with blue slips is worth it for the political goal to be achieved, and that is getting more Democratic judicial nominees confirmed.

When it comes to the first, the idea that things have gotten so partisan that we should just give up and embrace it, I would say that I think the last solution--the last solution--to increased partisanship is to abolish measures that promote collaboration and comity.

Now, we have seen a lot of virulent partisanship around here lately, but the truth is that bipartisanship still exists even though it may not always receive the same kind of sensational coverage that major disputes between the parties receive. And anything that promotes bipartisanship, that encourages Members of both parties to work together, to listen to each other's concerns, and to compromise when possible, is a good thing.

But while I may not agree that the solution to increased partisanship is to just give in to it, I am really troubled by the second idea put forward by those who want to abolish blue slips: that it is worth abandoning a significant Senate tradition--a tradition that promotes compromise, checks unfettered majority power, and serves as a critical check on the President--for the sake of temporary political gain.

This, of course, is hardly the first time we have seen this attitude during the Biden administration. We have also seen it displayed with Democrats' attempt to abolish the legislative filibuster, the Senate rule that today almost unquestionably does more than anything else to preserve the Founders' vision of the Senate as a place of stability and deliberation and a check on the power of faction.

I will be frank. The legislative filibuster can be frustrating in the extreme. When Republicans were in control of the Senate, we took multiple votes on the Born-Alive Abortion Survivors Protection Act, a piece of legislation that would enshrine what should be the most commonsense thing imaginable, and that is that a living, breathing child born after a botched abortion should be granted protection. The Born-Alive Abortion Survivors Protection Act would have passed without the legislative filibuster.

So there is no question that the filibuster can stop good legislation from getting passed just as a blue slip could prevent a good judge from being confirmed, but that is not a reason to do away with either of these Senate procedures, and above all, it is not a reason to do away with the legislative filibuster.

Yeah, the filibuster can be frustrating, and it can certainly be used to stop good bills, like the Born-Alive Abortion Survivors Protection Act, but it is a powerful protection against bad legislation. Without the legislative filibuster, there is very little, if anything, to prevent terrible legislation from getting passed by an extremely narrow or even merely technical Senate majority.

The legislative filibuster offers a host of other benefits. It encourages compromise, it discourages extremism, and it provides a voice for Americans represented by whatever party is in the minority, who also deserve representation. The Founders knew that tyranny didn't just come in the form of individual despots and dictators. They knew that majorities could be tyrants as well and trample on the rights of Americans in the minority, and the legislative filibuster helps guard against that.

So I believe very firmly in the Senate rules and traditions that preserve the Founders' vision of the Senate as a place of consensus and deliberation and that help prevent tyrannical majorities from trampling on rights and representation for members of the minority.

While the legislative filibuster or the blue slip process may prevent a good piece of legislation from getting passed or a good nominee from getting confirmed, the alternative--the alternative--which is a system without meaningful representation for the minority party and the Americans it represents, without a meaningful check on extreme nominees or legislation that threatens our constitutional rights is, in fact, much, much worse.

So before Democrats think about abolishing key Senate protections against extremism or the tyranny of the majority, I hope they will consider what things might look like when they are once again in the minority and they want to stop a nominee or piece of legislation that they view as dangerous or extreme, and I hope they will decide in favor of checks and balances in Senate institutions.

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