On Tuesday evening, President Donald Trump called for Senate Judiciary Chair Chuck Grassley (R-IA) to eliminate what Trump called the “‘Blue Slip’ SCAM,” a Senate tradition that gives home-state senators a veto power over some presidential nominees who wield power entirely within the senator’s state. Trump posted about his opposition to blue slips on Truth Social, his personal communications platform.
The blue slip is an informal Senate tradition, named after the blue pieces of paper that senators use to indicate whether they approve of a judicial or US attorney nominee for their own state. The practical effect of a senator’s decision to oppose such a nominee varies wildly depending on who serves as chair of the Senate Judiciary Committee. But, in recent years, senators of both parties have used the blue slip process to veto people nominated to serve as top federal prosecutors and as district judges, the lowest rank of federal judge who receives a lifetime appointment.
What triggered Trump’s call to end the blue slip process?
Trump’s call to eliminate blue slips comes just one week after the temporary appointment of Alina Habba, one of Trump’s former personal lawyers, as the top federal prosecutor in New Jersey expired.
Federal law permits Attorney General Pam Bondi to temporarily appoint US attorneys for up to 120 days. Once that clock runs out, however, the same law allows federal district judges within the same judicial district to replace the attorney general’s choice. Habba’s appointment expired last week, and New Jersey’s federal judges picked Desiree Leigh Grace, a career prosecutor, to replace her.
Bondi then claimed that Grace “has just been removed.” So it is unclear who, if anyone, currently serves as US Attorney for the District of New Jersey.
During her brief tenure in the office, Habba wielded her powers aggressively to target elected Democrats. She brought charges against Newark Mayor Ras Baraka and US Rep. LaMonica McIver relating to the two Democrats’ protest of an immigration detention facility in New Jersey.
A federal magistrate judge called the charges against Baraka a “worrisome misstep,” and Habba eventually ended that prosecution. The charges against McIver are still pending, despite a federal law that permits sitting members of Congress to enter federal immigration facilities as part of their oversight duties.
Habba also opened federal investigations into New Jersey’s Democratic governor, Phil Murphy, and its Democratic attorney general, Matt Platkin, over a directive limiting state law enforcement cooperation with federal immigration officials. Under a line of Supreme Court decisions stretching back to New York v. United States (1992), the federal government may not compel state police to participate in federal law enforcement.
Currently, Habba’s nomination to lead the New Jersey US Attorney’s office indefinitely is on hold due to opposition from US Sens. Cory Booker and Andy Kim, both Democrats from New Jersey. Booker and Kim, in other words, used their blue slips to block the appointment of Habba.
In his post denouncing the blue slip, Trump complained that the Senate tradition currently prevents him from installing his choices for judicial and prosecutorial jobs in the blue states of “California, New York, New Jersey, Illinois, Virginia, and other places.” Given Habba’s conduct in office during her brief tenure as US attorney, it is likely that Trump would install loyalists as prosecutors who would target Democrats within those states.
If Trump is also able to appoint district judges without seeking home-state senators’ permission, these political trials could be conducted by Trump-loyalist prosecutors and then heard by Trump judges who are likely to attempt to rig them to ensure a conviction. Imagine judges like Aileen Cannon, the Trump judge who sabotaged the Justice Department’s attempt to prosecute Trump for stealing classified documents, hearing political trials in every blue state.
The blue slip is one of the most abused practices in the United States Senate
Habba’s conduct in office makes a compelling case for leaving existing norms in place. Right now, Trump cannot install loyalist prosecutors in blue states for more than 120 days. And he will have a tougher time installing loyalist district judges.
Before Trump’s rise to power, however, the blue slip was often abused by senators seeking partisan control of the judiciary. For most of the Obama presidency, for example, then-Senate Judiciary Chair Patrick Leahy (D-VT) didn’t just give home-state senators a veto over district judges and US attorneys. He also permitted them to veto more powerful appellate judges, who typically hear cases arising out of more than one state.
Republican senators wielded the power Leahy gave them with brutal effectiveness. The United States Court of Appeals for the 5th Circuit, which oversees federal suits out of Texas, Louisiana, and Mississippi, is currently dominated by MAGA judges known for extravagantly reasoned decisions declaring entire federal agencies unconstitutional or permitting red states to seize control of social media platforms — among other things. (These decisions are frequently reversed by the Supreme Court, despite the Court’s 6-3 Republican majority.)
A major reason why the 5th Circuit is such a MAGA stronghold is that, under Leahy, Republican senators from 5th Circuit states could veto anyone President Barack Obama nominated to serve on this court. Similarly, Sen. Ron Johnson (R-WI) exploited Leahy’s expansive blue slip rule to hold a seat on the 7th Circuit open for most of the Obama presidency. It was eventually filled by a Trump appointee.
Leahy’s decision to let individual senators veto appellate judges was unusual, and Republicans abandoned this practice as soon as Trump took office in 2017. Since then, home-state senators have been allowed to veto district court and US attorney nominees, but not appellate judges.
There is some logic to this more limited blue slip process. Because appellate judges oversee multiple states, Leahy’s expansive veto rule effectively permitted senators to dictate who would decide cases in neighboring states. The 7th Circuit, for example, includes not just Johnson’s home state of Wisconsin, but also the blue state of Illinois. Why should the senator from Wisconsin get to decide who interprets federal law in Illinois — or, at least, why should Johnson’s vote count more than any other senator’s?
But the jurisdiction of district judges and US attorneys is limited to a single state. Some states, like New Jersey, are their own federal judicial district. Other states, like California, are chopped into as many as four federal judicial districts. But none of these districts cross state lines.
The current blue slip practice, in other words, permits senators — who are the elected officials chosen to represent an entire state’s interests in the federal government — to block nominees who would wield power entirely within their own states. Officials who wield power in multiple states are evaluated by the Senate as a whole.
If Trump gets his way, however, he may not just gain the ability to override home-state senators’ vetoes — he may also get to install prosecutors who will bring fabricated charges against those same senators.
