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The Origins of Senatorial Courtesy

Today’s post comes from Christine Blackerby, an Outreach Specialist at the Center for Legislative Archives at the National Archives in Washington, DC. The Center for Legislative Archives is marking the 225th anniversary of the First Congress by sharing documents on Tumblr and Twitter; use #Congress225 to see all the postings.

Nomination of Benjamin Fishbourn and others to be Port Collectors, etc., August 3, 1789. (Records of the U.S. Senate, National Archives)

Nomination of Benjamin Fishbourn and others to be Port Collectors, etc., August 3, 1789. (Records of the U.S. Senate, National Archives)

Two hundred and twenty-five years ago, on August 3, 1789, President George Washington sent the Senate a seven-page list of nominees for port collectors. Several days before, he had signed an act establishing a system for collecting import taxes at the ports, and he acted quickly to staff the customs system so the new government could establish a steady flow of revenue.

The government’s inability to raise adequate revenue under the Articles of Confederation was one of the main reasons the Constitution had been adopted just the year before.

Washington sent his list of nominees to the Senate in observance of the Constitution’s requirement that the Senate give its “advice and consent” to Federal officers. The neatly prepared document listed each port and the positions to be filled.

The name of each nominee appears next to each position. Next to each name, a clerk in the Senate noted the outcome of the Senate’s votes. “Aye” is written next to all of the names but one—Benjamin Fishbourn for naval officer at the port of Savannah, Georgia.

Fishbourn was the first Presidential nominee to be rejected by the Senate, and the event marks the beginning of the custom of senatorial courtesy. This tradition holds that the Senate may reject a nominee who is not supported by the nominee’s home state senators. It encourages the President to engage the Senate in the “advice” part of the nomination process as well as the “consent” part.

In the case of Fishbourn, he was opposed by Senator James Gunn of Georgia. President Washington was reportedly angered at the rejection of his choice and went to the Senate directly to ask why. Senator Gunn told the President his reasons, but only after he made it clear that he was doing so out of his personal respect for Washington and that the Senate owed no explanation of its votes to any President.

Senatorial courtesy reflected the view that home state senators should have a voice in the selection of officials who could have a substantial impact within their state. By the early 1900s, this custom led to the advent of the “blue slip.”

Senator Thomas Hardwick’s Blue Slip for U.V. Whipple, April 11, 1917. (Records of the U.S. Senate, National Archives)

Senator Thomas Hardwick’s Blue Slip for U.V. Whipple, April 11, 1917. (Records of the U.S. Senate, National Archives)

The chairperson of the Senate Judiciary Committee sends a blue slip to the home state senators of a nominee for positions such as judge, attorney, or marshal.  It offers home state senators the opportunity to weigh in on the nominee and indicate whether the support or oppose the nomination.

This 1917 blue slip for U. V. Whipple to be a district judge for the southern district of Georgia is one of the earliest existing blue slips in the records of the Senate. Senator Thomas Hardwick of Georgia returned this blue slip to the committee chairman with a strong statement of his opinion. Hardwick wrote, “I object to this appointment—[Whipple] is personally offensive and objectionable to me, and I can not consent to the confirmation of the nominee.”

Under some Senate Judiciary chairmen, a “negative” blue slip was treated as a veto, and the chairman refused to move the nomination forward. At other times it was treated more as advisory. In 1917, the Judiciary Committee reported Whipple’s nomination to the full Senate, but recommended that the Senate reject Whipple. The Senate later voted against the nomination, thereby refusing to give its consent.

Although in 1789 Senator James Gunn couldn’t know the significance of his objection to President Washington’s nomination of Benjamin Fishbourn, it resulted in senatorial courtesy and later the blue slip—traditions that continue today.

 

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