Filibuster is Gone, But Will Blue Slips Halt 11th Circuit Nominations?

By William Peacock, Esq. on November 27, 2013 | Last updated on March 21, 2019

Earlier this month, Congress did the unthinkable: they invoked the so-called "nuclear option" and removed the filibuster option for blocking the president's nominees from being brought to a vote, with the exception of Supreme Court nominations.

Though much attention (rightfully) has been paid to the D.C. Circuit, with its three vacancies, and its importance in national matters, we're more concerned with the local impact. Will the removal of the filibuster allow thirteen Eleventh Circuit vacancies (four of which are on the circuit court of appeals itself) to be filled in a timely manner, or will the oft-forgotten Blue Slips tactic rise up in its place?

Blue Slips, in Short

When the Senate made their announcement, we noted that blue slips were still a possibility. After all, even before the gutted filibuster announcement, blue slips were used locally, to block Jill Pryor from the appeals court bench, and Florida state court Judge William Thomas, who was in line for a district court seat.

What's a blue slip? Before the Senate will bring a nominee to a vote, the home state senators are provided a "blue slip," which they can submit to signal their approval of a nominee. In Pryor's case, both of the Republican Senators from Georgia, Saxby Chambliss and Johnny Isakson, withheld their slips. In Thomas's case, Sen. Marco Rubio (R-FL) withheld a blue slip in a move some argued was motivated by the nominee's sexual preference.

Jeffrey Toobin, writing for the Atlantic, notes that the President will often run his potential nominees past the state's senators before nomination, to avoid a lengthy and fruitless confirmation process. Indeed, that's what happened with Sen. Rubio and Judge Thomas, though Rubio eventually reversed course and blue-slipped the nomination. That's also, as Toobin notes, the reason why Obama hasn't nominated anyone to fill a number of vacancies in the Republican-controlled South.

Eleventh Circuit, Specifically

We haven't heard a peep on Jill Pryor since her initial nomination was blue-slipped, so that spot will likely remain vacant in the near-term. And since seats on the courts are typically tied to their home state (when a Circuit Court of Appeals judge from Florida retires, she is replaced by a Floridian), we can already see where future nominees may run into trouble.

According to the U.S. Courts' website, there are four vacancies on the Eleventh Circuit Court of Appeals, including the vacancy created by Judge Joel Dubina, who delayed his shift to senior status for most of this year, in hopes that the other vacancies would be filled, but who finally relented on October 26. Here are the four spots, their assigned states, and the political affiliations of the state's senators:

  • J.L. Edmondson (Senior, 7/15/12), Georgia, Republican and Republican;
  • Joel Dubina (Senior, 10/26/13), Alabama, Republican and Republican;
  • Stanley F. Birch, Jr. (Retired, 8/29/10), Georgia, Republican and Republican;
  • Rosemary Barkett (Resigned, 09/30/13, Florida, Republican and Democrat.

As you can see, if blue slips are used (or abused) along party lines, the Eleventh Circuit's nomination logjam, for the four Circuit Court spots, as well as the nine district court vacancies, could continue. The filibuster "reform," at least in regards to the Eleventh Circuit, shouldn't make too much of a difference.

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