The Federalist Society of Mississippi last week led a lunch discussion on the minority's role in judicial confirmations before the U.S. Senate. Ed Haden, former nominations and Constitutional law counsel for then US Senate Judiciary Chairman Orrin Hatch; Mississippi Democratic Party Chairman Jamie Franks; former Fifth Circuit Court of Appeals Justice Charles Pickering; and attorney Luther Munford, a former law clerk to U.S. Supreme Court Justice Harry Blackmun, dialogued with moderator Brad Prewitt.

Haden raised the role of the Senate's "advice and consent" of judicial nominations. He noted the Senate exercises "consent" by voting to confirm or reject a nomination. "Advice" involves consultation by the President with senators before Senate consideration. This home state consultation ("senatorial courtesy") may extend to other presidential appointments. He cited as example the Senate's 1798 rejection of a George Washington appointment from Georgia for failure to first consult with Georgia's two senators. As applied to judicial nominations, home state senators have enjoyed since 1917 a "blue slip" policy (literally named for the color of the form) in which by refusing to consent to a nominee, a senator may prevent a hearing before the Senate Judiciary Committee, thus holding the nomination in indefinite limbo.

To avoid expending political capital over a federal district judge, a president will ask that state's senators to provide a list of potential nominees. But President Barack Obama, a Democrat, faces two Republican Senators in Mississippi. This impacts not only federal judges, but other federal appointments on the state level including U.S. Attorneys, U.S. Marshals, Executive Director of USDA Rural Development and Executive Director of USDA Farm Service Agency.

Franks explained with no Democrat Senator to make these recommendations, the Obama administration delegated the state Democratic Party to lead the way.

Franks said he spoke with Alabama Democratic Party Chairman Joe Turnham on their method for choosing nominees (Alabama also has two Republican senators) and said he intended to use Alabama as a model. The Alabama Presidential Advisory Council consists of that state's three Democratic congressmen, members of the State Democratic Executive Committee and Alabama's DNC members. It announced all its recommendations in early January, even before Obama's Inauguration.

In Mississippi, Franks explained a committee consisting of himself, Rep. Bennie Thompson, Rep. Travis Childers, Rep. Gene Taylor, Attorney General Jim Hood, and Speaker of the House Billy McCoy made recommendations and submitted names for Mississippi's presidential appointments. He said judicial nominations would occur in the same manner.

Franks said Republicans should remember that the Democrats won, and any federal judge nominees are not going to look like Northern District Court Judges Mike Mills or Sharion Aycock, but more like attorney Carlton Reeves. When asked if Reeves was just a random example, Franks only laughed. Earlier in the program, Franks had mentioned that an opening on the Southern District Court would likely be filled by a minority or woman from Jackson. Reeves happens to be black and from Jackson.

Currently, the only vacancy on the federal bench in Mississippi is on the Southern District bench. Judge William Barbour has taken senior status and President George W. Bush had nominated Meridian attorney Richard Barry. Last year, the Democrat controlled Senate did not act on the nomination, thus holding over the vacancy for Obama to fill.

In November 2008, Thompson chief-of-staff Lanier Avant told The Clarion-Ledger the state's three Democratic congressmen would be a "springboard" to suggest judicial nominees to Obama and last month he told The Sun-Herald that Thompson intended to give the president only one name as a recommendation for the Southern District U.S. Attorney.

It should be noted that Taylor is the state's senior Democratic congressman, but having never endorsed Obama for President and in recent weeks publicly criticizing his fiscal policies (even calling them "nuts"), it is of no surprise that the Obama Administration would turn more to Thompson - an early primary supporter - for guidance.

There is no firm procedure for the confirmation process of federal judges or to what extent a Senate Judiciary Chairman will honor the blue slip tradition. Senate Republicans are gearing up to fight for consultation.

A letter signed by all 41 Senate Republicans sent to Obama earlier this month said they hoped his administration would consult with them when considering "possible nominations to the federal courts from our states" but that if he did not, "the Republican Conference will be unable to support moving forward on that nominee...and we will act to preserve [senatorial courtesy] and the rights of our colleagues." Haden mentioned the letter does not say "filibuster" because there are many other ways a united minority can frustrate all legislation in the Senate.

Franks mentioned that after hearing various perspectives at the luncheon, he intends to consult with Mississippi's Republican senators on judicial nominees, and that he would send a letter to Sens. Cochran and Wicker to get their input.

Brian Perry, a former congressional aide, is a partner in a public affairs firm. Reach him at reasonablyright@brianperry.ms.