President Donald Trump is escalating his war against a long-time Senate precedent that allows home-state senators to effectively block district court and U.S. attorney nominees they oppose.
Over the past 24 hours, Trump has gone from calling out Senate Judiciary Chair Chuck Grassley for upholding the so-called blue slip practice to announcing plans to launch a long-shot lawsuit arguing that it’s unconstitutional.
“We’re … going to be filing a lawsuit on blue slipping,” Trump told reporters Monday. “You know, blue slips make it impossible for me as president to appoint a judge or U.S. Attorney because they have a gentlemen’s agreement. It’s nothing memorialized, it’s a gentlemen’s agreement that’s about 100 years old.”
The Justice Department did not immediately respond to a request for comment. However, an executive branch lawsuit against Congress for its own internal procedures for handling presidential nominations seems like a legal nonstarter.
Courts have long been wary of intervening in political disputes between the other branches of government, instead allowing them to use their own formidable checks and balances to reach “accommodations” or negotiate agreements. The blue slip isn’t a formal Senate rule, or in the Constitution, but is instead a precedent upheld by tradition and the party in power.
Trump’s threat, however, marks an escalation of a pressure campaign he has been waging — without success — against Grassley over blue slips for more than a month.
Tensions were newly inflamed late last week, when a U.S. district judge ruled that Alina Habba, an acting U.S. attorney in New Jersey, had been serving in the role without legal authority since July 1.
Trump had tried to keep Habba in charge of the office after her interim appointment expired. That effort included withdrawing her Senate nomination, which was already stalled because of opposition by New Jersey Democratic Sens. Cory Booker and Andy Kim.
On Sunday evening, Trump posted on Truth Social that Grassley should scrap the blue slip practice, which the president called an “old and outdated ‘custom.’”
Trump continued: “The only candidates that I can get confirmed for these most important positions are, believe it or not, Democrats! Chuck Grassley should allow strong Republican candidates to ascend to these very vital and powerful roles, and tell the Democrats, as they often tell us, to go to HELL!”
Republicans got rid of this same precedent for appeals court nominees during Trump’s first term, but they have so far rebuffed Trump’s calls for them to do the same for district court and U.S. attorney nominations. Many GOP senators believe that if they bend to Trump’s demand now, it would only come back to bite them later, when they find themselves back in the minority and unable to stop nominees from a Democratic administration.
Grassley spent the first half of Monday morning defending his position. In one social media post, he said that, as chair of the Judiciary Committee, “I set Pres Trump noms up for SUCCESS NOT FAILURE.”
“A U.S. Atty/district judge nominee without a blue slip does not [have] the votes to get confirmed on the Senate floor & they don’t [have] the votes to get out of [committee],” he added.
In a subsequent X post Monday, Grassley said the administration had withdrawn Habba’s nomination and that the committee “never received any of the paperwork needed for the Senate to vet her nomination.”
In another post, he justified his decision to maintain the precedent by pointing out how Republicans used blue slips during the Biden administration to keep “30 LIBERALS OFF BENCH THAT PRES TRUMP CAN NOW FILL W[ITH] CONSERVATIVES.”
Grassley on Monday was also fending off not just criticism from Trump but from Habba herself, who took on Grassley and Sen Thom Tillis by name in a TV interview on Sunday morning.
“This tradition that Senator Grassley is upholding effectively prevents anybody in a blue state from going through into Senate to then be voted on,” Habba said on “Sunday Morning Futures with Maria Bartiromo.”
“I would say to Senator Tillis and Senator Grassley, you are becoming part of the issue,” she added. “You are becoming part of the antithesis of what we fought for four years.”
Tillis, a North Carolina Republican and a member of the Judiciary Committee, said recently that he would continue to honor the blue slip for district court and U.S. attorney nominations even if the precedent was rescinded. That means he would oppose all relevant nominees who lacked support from their home state senators.
In a statement on X Monday, Tillis defended Grassley, calling him a “principled conservative who wants to keep radical liberals off the bench.”
“Getting rid of the blue slip is a terrible, short-sighted ploy that paves the path for Democrats to ram through extremist liberal judges in red states over the long-term,” said Tillis. “It’s why radical liberal groups have been pushing to get rid of the blue slip for years — Republicans shouldn’t fall for it.”
Kyle Cheney contributed to this report.