A longstanding Senate practice has stymied President Trump’s efforts to install his preferred federal prosecutorial candidates in states represented by Democrats, as Republicans refuse to bow to the president’s demand to bulldoze past minority opposition and allow the nominees to be confirmed.
The tradition has armed Democrats with a strong defense against the elevation of U.S. attorneys they see as unqualified or partisan, and frustrated Mr. Trump as he seeks to impose his will on the federal justice system.
Just two of the 18 U.S. attorneys confirmed so far in the president’s second term serve in states with at least one Democratic senator, as the administration has sought to bypass the confirmation process. But those efforts to circumvent the Senate and install loyalists in blue states where he wants to see aggressive prosecutions have led to substantial pushback from the courts, imperiling cases brought by the Trump appointees and creating turmoil in the justice system.
At issue is what is known as the “blue slip,” which gives home-state senators of both parties virtual veto power over some judicial and prosecutorial nominees. The idea, in theory, is to force consultation between the White House and senators over who should fill those jobs in line with the Constitution’s advice and consent provision. It was named for the color of the paper used to register a senator’s position with the Judiciary Committee.
The privilege gives Democrats substantial leverage over numerous nominations, and Republicans’ refusal to abolish it is a rare area in which they have declined to go along with Mr. Trump’s wishes. They have preserved the practice even after recently changing institutional rules to allow them to steer around Democratic resistance and confirm scores of executive branch nominees in one fell swoop.
Mr. Trump has made it clear that he sees the blue slip power as a gross infringement on his presidential authority to pick whomever he wants for the jobs. He has repeatedly demanded that Senate Republicans do away with it, so far to no avail as Senator Charles E. Grassley, the Iowa Republican who leads the Judiciary Committee, has refused.
“They should get rid of blue slips,” Mr. Trump reiterated on Monday at the White House. “If you have one Democrat in a state, it is not possible to appoint because of blue slips.” He added that the courtesy “should not be relevant anymore.”
“This is a different world than it was 15, 20 years ago,” he said. “That was a gentleman and gentlewoman’s world. This is a little bit different, unfortunately.”
Opposition by Democrats contributed to Alina Habba, a former personal lawyer for Mr. Trump, stepping down from her U.S. attorney position in New Jersey when she was found to be improperly appointed and could not win blue slip blessing from the state’s two Democratic senators.
Lindsey Halligan, who also represented Mr. Trump, was disqualified as a U.S. attorney in Virginia by a judicial ruling after a challenge to her legitimacy. Two of her major cases were also tossed out, though she now appears to be seeking formal Senate confirmation.
An acting U.S. attorney in Delaware stepped down last week, citing the blue slip blockade. The standing of appointed prosecutors in several other states including New York, New Jersey, California, Nevada and New Mexico has also been called into question.
Despite the escalating pressure from the White House, Mr. Grassley said he intended to continue to honor the blue slip after his own poll of the committee found that a bipartisan majority of members would reject any Trump nominee for U.S. attorney who did not have the required home-state sign off.
“He wouldn’t get anyone out of committee,” Mr. Grassley said. “If you don’t get them out of committee, he doesn’t get them approved on the floor of the Senate.”
Multiple Republican members of the panel have said they want the committee to continue to abide by the blue slip practice, fearing that if they scrapped it, Democrats would ram through prosecutors and judges opposed by Republicans for their homes states when the majority shifted and the shoe was on the other foot.
Vice President JD Vance, who served two years in the Senate, has joined Mr. Trump in trying to ratchet up pressure on his former colleagues. On Monday, he used social media to call the blue slip an institutional safeguard that has outlived its usefulness.
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“The single biggest obstacle to prosecuting violent leftists is judges and prosecutors in deep blue areas who think violence is OK if you’re a leftist,” he wrote. “This is why we must get rid of the blue slip process.”
Democrats say the problem is of Mr. Trump’s own making since he has overtly politicized the U.S. attorney position and cut Democrats out of the nomination process.
“They are in real quicksand and sinking fast,” said Senator Richard Blumenthal, a Connecticut Democrat who serves on the Judiciary Committee. “They have completely politicized the process.”
The Democratic blockade has not been total. Prosecutor nominees for Michigan and New Hampshire are expected to be confirmed this week as the Senate finishes its business for the year and others are in the pipeline, including Ms. Halligan.
She would be hard-pressed to win the backing of the two Democrats from Virginia, Senators Mark Warner and Tim Kaine, though Mr. Warner said on Monday that they would give her the courtesy of an interview. Her nomination could become a test case for how hard the administration wants to pursue confirmations over the objections of Democrats.
After the ruling that led to Ms. Habba stepping down, Julianne Murray, the acting U.S. attorney for Delaware, resigned last week, blaming the “incredibly flawed” blue slip tradition.
“I naïvely believed that I would be judged on my performance and not politics,” Ms. Murray, a former head of the Delaware Republican Party, said in a statement.
Senator Chris Coons, a Delaware Democrat who sits on the judiciary panel, acknowledged that he did not intend to return a blue slip on Ms. Murray, pointing to her limited experience in federal court as well as the president’s calls for the prosecution of perceived political enemies.
“This is not a normal time,” Mr. Coons said. “I am doing my job in trying to ensure we have independent, capable, quality, nonpartisan U.S. attorney candidates.”
Republicans have weakened the power of the blue slip before. At the urging of Senator Mitch McConnell, Republican of Kentucky and the majority leader at the time, Mr. Grassley decided in 2017 to override the blue slip right for federal appeals court judges, arguing that the jurisdiction of those judges typically extended beyond one state.
That change cleared the way for the confirmation of more than 50 appeals court judges during Mr. Trump’s first term despite Democratic opposition. The custom remains in place for district court judges, U.S. attorneys and federal marshals — all posts senators see as subject to their influence.
Mr. Grassley, who has been strongly backed in his support for the blue slip by Senator John Thune, Republican of South Dakota and the majority leader, has come under increasing criticism from the right for not jettisoning the practice and clearing the way for Trump picks. But Mr. Grassley’s allies say that he is merely channeling the sentiments of his fellow Republicans.
Mike Davis, an ally of Mr. Trump and a former adviser to Mr. Grassley on Judiciary Committee nominations, said one answer was to require Senate Republicans to make clear they will vote for nominees without blue slips.
“The solution is to get at least 50 Senate Republicans, including all Senate Judiciary Republicans, to sign a letter saying they will vote to confirm U.S. attorney nominees who do not have both blue slips from their home-state senators,” Mr. Davis said on social media.
Mr. Grassley noted that he had pushed about three dozen of the administration’s U.S. attorney nominees through his committee — though the vast majority were in states with Republican senators. He urged the president to send up more candidates and try to work with home-state senators to win their approval.
“Every president has done proper consultation with every senator for that state,” Mr. Grassley said. “What he needs to do is continue what’s worked for the last 50 years.”
Carl Hulse is the chief Washington correspondent for The Times, primarily writing about Congress and national political races and issues. He has nearly four decades of experience reporting in the nation’s capital.
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