Trump Promises Lawsuit Over Senate’s ‘Blue Slips’ for Judges (1)

President Donald Trump said his administration will file a lawsuit against a Senate practice that requires a home state senator’s approval for federal appointments like judges and US attorneys.

Trump told reporters on Monday that a lawsuit will be filed “pretty soon” over “blue slips.” “This is based on an old custom, it’s not based on law and I think it’s unconstitutional,” he said in the Oval Office.

He claimed that the practice makes it “impossible for me as president to appoint a judge or a US attorney.” During Trump’s second term, the Senate has so far confirmed three federal district judges in Missouri, which has two Republican senators, and the president has announced nominees for seats in other red states. The Senate has also confirmed the US attorney for Washington, DC, and in Florida.

The threat of litigation is an escalation of Trump’s public frustration with blue slips, as he’s called for Senate Judiciary Committee Chair Chuck Grassley to get rid of them.

Grassley previously allowed appellate picks to move forward without home state senators’ approval during the first Trump administration, and two appeals court nominees have been confirmed by the Senate during the president’s second term.

Grassley defended the practice in social media posts on Monday, saying it allowed Republicans to keep Biden appointees off the bench and that Trump can now fill those seats with conservatives.

“A U.S. Atty/district judge nominee without a blue slip does not hv the votes to get confirmed on the Senate floor & they don’t hv the votes to get out of cmte,” he wrote in another post. “As chairman I set Pres Trump noms up for SUCCESS NOT FAILURE.”

It’s not clear how the litigation will target the Senate tradition. Federal courts have interpreted the Constitution’s Speech or Debate clause as granting lawmakers immunity from civil lawsuits that target legislative acts.

The Constitution also says that the president can appoint judges “with the Advice and Consent of the Senate,” and that the House and Senate “may determine the Rules of its Proceedings.”

Alina Habba, Trump’s pick for US attorney in New Jersey, has also spoken out against the use of blue slips for nominees. In response to one of Grassley’s posts, she said on Monday the tradition prevents nominees from making their cases to senators.

“Remember, President Trump nominates individuals that he knows can get the job done. Your job is to work with your committee to advance their nominations,” she wrote on social media.

Trump had tapped Habba to serve as US attorney, but her nomination was pulled when her interim appointment expired without her being confirmed by the Senate.

The US district judges in New Jersey chose Habba’s deputy to succeed her at the end of her interim appointment, but the administration fired the deputy and installed Habba as the acting top federal prosecutor.

A Pennsylvania federal judge ruled Aug. 21 that Habba’s appointment was invalid, a decision the administration is now appealing.

Grassley on Monday also said the Senate Judiciary Committee never received the paperwork needed to vet Habba’s nomination before it was pulled as part of the effort to install her as acting US attorney.