At Large Circuit Nominees?

During the first Trump Administration, the blue slip policy was effectively eliminated for circuit court judges. The goal, of course, was to ensure that states with one or more Democratic senators would not be able to block all circuit court nominees. Still, the blue slip policy remained for district court judges through Trump 1.0, the Biden Administration, and Trump 2.0. Does anyone expect the blue slip policy for district court judges to survive if a Democrat wins the White House in 2028 with 56+ Senators? I am doubtful. Indeed, given how Democrats blocked so many U.S. Attorney nominees, I am doubtful the blue slip endures even for that position.

Let’s just assume the blue slip policy is eliminated for district court judges. Should the Republicans ever regain power, I propose a thought experiment: actually eliminate the blue slip for circuit judges. As I’ve noted, circuit court judges belong to the circuit, not the state. It is a mistake to even think of a “home state senator” for a circuit court seat. Of course seats are affiliated with a state by virtue of custom, but nothing in the statute requires it. If Congress wants to assign a seat to a state, they can easily do so. But a Circuit Court Judge decides cases that affect all of the states in a circuit. Indeed, over time, some seats have “switched” between states.

The President could perhaps facilitate that process by making all circuit court nominees “at large.” In other words, the President could solicit nominees from candidates in all states in that circuit. If a Fifth Circuit seat opens up, the Senators from Texas, Louisiana, and Mississippi could all make recommendations, and the President could pick the best candidate all around. Likewise, if an Eighth Circuit seat opens up, the Senators from the states between North Dakota and Arkansas can make recommendations.

There are many obvious objections.

First, and foremost, requiring this much consultation can gum up the process. Dealing with one set of senators is a lot of work. Multiplying that by many more can become impossible. But it would be just that–a consultation. The White House would only have to interview the judges that clear the bar. Again, no actual blue slip. I suspect if you rank all of the nominees circuit-wide, few would make the cut.

Second, some senators are very good at picking judges. Opening up the process to so many not-so-good senators, can make the process worse. Indeed, Senators are democratically accountable, while people in OLP and the White House Counsel’s Office are largely unknown. I think the response is that very few few Senators are actually good at this process. My goodness, the Senators from Mississippi and Arkansas should be permanently disqualified from picking their friends as judges. I think my recommendation would, on balance, get far more strong judges than the status quo. Of course, the President can give more deference to senators with proven track records of picking judges.

Third, Senators are unlikely to go along with this process, and will not give up their customary prerogative. Again, in my hypothetical, the blue slip is gone for district court judges, so it will be a different world. Indeed, given that district court judges can issue universal vacaturs that affect the entire country, I’m not sure why senators should have that much control. The Senate can of course vote down a nominee, but that would have to be a vote they are accountable for. Would Senators Boozman and Cotton have voted down Judge Rudofsky on the floor? Probably not.

This is just a thought experiment. Fodder to consider for the future. That is, unless the Grand Old Party goes the way of the Federalists and the Whigs.

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