Why Trump Wants to Sue the Senate
And how presidents end up nominating unexpected judges.
Programming note: I’ll be speaking with Rep. (D-MA) on Substack Live at 12 p.m. ET. Auchincloss is a fascinating voice on the future of the Democratic Party and I’m excited to talk with him. (Yes, this was announced previously but had to be rescheduled because of internet issues. Congressmen, they’re just like us!)
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Whenever I write about the federal courts, I typically make sure to note which president appointed the judge I’m talking about.
And whenever I do that, I’ll invariably receive an email from someone complaining about how I’m injecting partisanship into the judiciary by depicting judges as ideological actors. (As Chief Justice John Roberts once said: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.”)
I understand where these complaints are coming from. I don’t love it that our courts have been so politicized, either! But I’m a journalist, which means my job is to give my readers all the context they need to understand a story, and — whether we like it or not — when reading about a federal judge’s ruling, the president who appointed them will often make for important context.
I say “often” because there are a handful of examples where listing the president who appointed a judge could actually end up misleading a reader. Here are two, from recent-high profile cases.
The first headline is about Stephanie Gallagher, a federal district judge in Maryland, who ordered the Trump administration in April to facilitate the return of a Venezuelan migrant (known in court filings as “Cristian”) deported by the U.S. to an El Salvador prison, despite a prior court settlement that barred his removal. (Cristian was ultimately sent to Venezuela as part of a broader prisoner swap. The administration has offered to bring him back to the U.S., but it is currently unclear whether he wants to do so.)
The second headline is from just last week, when Matthew Brann — a federal district judge in Pennsylvania — ruled that Trump ally Alina Habba had been “unlawfully” appointed as the acting U.S. attorney in New Jersey.
These headlines, of course, are meant to frame your mental response to the rulings. In the first one, from a broadcast TV network, you’re supposed to think: Oh, interesting! A Trump-appointed judge ruled against Trump. And, in the second one, from an online conservative outlet, you’re supposed to think: Well, of course! An Obama appointee disagreed with Trump. What else is new?
But Judges Gallagher and Brann are part of a select club where knowing the president who appointed them can actually hurt, not help, your efforts to ground their ruling in a baseline expectation of their judicial philosophy. Gallagher, for instance, was initially nominated to the federal bench by Obama; she was never approved during his term, and only received confirmation after being re-nominated by Trump in his first administration. So that’s one a little bit more complicated: if Obama had gotten his way, she would actually be an “Obama-appointed judge,” and what is now a provocative and interesting headline would actually be seen as humdrum.
Brann, meanwhile, is an Obama nominee, as the Daily Caller tells us. But he’s also a member of the conservative Federalist Society and the National Rifle Association (NRA). Plus, if you look at his Senate Judiciary Committee questionnaire, you’d learn that he served as an alternate delegate to the 2008 Republican National Convention and even used to chair his county Republican Party. Not exactly the liberal judge that headline would lead you to believe!
In fairness to these media outlets, this is all a bit strange! And certainly counter to our expectations about the federal judiciary. How is that Trump ended up nominating an Obama pick, and Obama came to elevate an avowed Republican, in the first place?
The answer lies in an obscure Senate practice known as blue slips.1
Ever since the very first Congress, the Senate has enforced the idea that senators should get some say in the federal appointees for their home states. The first presidential nominee to be rejected by the Senate was Benjamin Fishbourn, who was nominated by George Washington for a naval post in Savannah, Georgia. But Georgia’s senators didn’t like Fishbourn and they had their own candidate in mind, Lachlan McIntosh. The entire Senate teamed up to defeat Fishbourn; Washington ended up nominating McIntosh.
This concept came to be known as “senatorial courtesy,” and it actually refers not to the courtesy the president pays senators by nominating candidates they support for federal positions in their state, but to the courtesy senators pay each other by supporting each other’s candidates, no matter what the president does. It’s a “what goes around, comes around” thing: if I support your right to have a say over a candidate from your state now, I’m assuming you’ll support my right to have a say over a candidate from my state tomorrow.
Over time, blue slips became the physical manifestation of senatorial courtesy, at least in the context of judicial nominees. As far back as 1917, when the president would nominate a district or appeals court judge, the chair of the Senate Judiciary Committee would send forms asking the opinions of the two senators from the state the judge would be sitting in. (So the two senators from Maryland for the district court in Maryland, for instance. For appeals courts, which cover multiple states, the slips would go to the senators representing whichever state the nominee was from.)
These forms were literal blue pieces of paper, which is how they got their name. They’ve had different looks over the years. (For a time, it was traditional for a senator who opposed a nominee, to scrawl on the slip that the pick was “personally obnoxious” to them. Tell us how you really feel!) Here’s an example of what one looked like in the 2010s:
Blue slips have carried different amounts of weight over the years. Although they date back to the 1910s, it wasn’t until Democrats controlled the Senate in the 1950s that the Judiciary Committee started declining to advance a nominee if a home-state senator sent back a blue slip signaling their opposition. (Some sources suggest that this was a way for segregationists to ensure that judges who supported school integration wouldn’t be confirmed in the South.)
But the practice of stopping a nominee with a negative blue slip was put to pasture in the 1970s (by Senate Democrats, during a Democratic administration), only to be revived in the Bush administration (again by Democrats). Since 2007, Judiciary Committee chairs of both parties (and during administrations of both parties) have only advanced nominees for district2 court judgeships when both senators from their state returned a positive blue slip.
What I find interesting about blue slips — when they’re rigidly enforced — is how they invert the expected power dynamic in nominating judges.
Of course, the Senate always gets the final say over confirming presidential appointees. But, in practice, blue slips have flipped the onus into giving senators the first say as well.
We think of judges as being selected by a president, and then sent to the Senate. (This is why we call them Obama- or Trump-appointed judges!) But because a senator knows they will get a veto over a judge in their home state, often they end up doing the selecting as well. They say: Well, yeah, I guess you could send me a nominee and then I could either support or oppose them, Mr. President. But, actually, I’ve picked my nominee! So you can send this person over and I’ll support them. Or you can send someone else over, and I won’t sign my blue slip and their nomination will be dead on arrival. Up to you, though!
Over time, this clever power play has been so institutionalized to the point that senators have set up entire apparatuses to select judicial nominees, a function that we normally think of as belong to the White House.
Did you know you can apply to be considered for a federal judgeship? Oftentimes, you can, through your Senate office. Many Senate delegations will solicit applicants for vacant judgeships, and then they have a screening committee set up that will select a recommendation. And, what do you know! The recommendation from the senators usually becomes the president’s nominee. And then everyone can rest easy knowing that the senators will quickly check off the blue slip for the nominee since, after all, the senators are the ones who chose them! Easy peasy!
Of course, not every Senate delegation is controlled by the same party as the president, which can lead to some unusual dynamics.
That’s how we ended up with the Trump-nominated Judge Gallagher in Maryland, for instance. Sens. Ben Cardin and Chris Van Hollen, both Democrats, recommended her to Trump (read: told him this is who they’d sign blue slips for), just as they did to Obama. I’m sure an Obama nominee wasn’t Trump’s first choice for a judgeship. But, all things considered, there were signs Gallagher would be a relative judicial moderate: she’d clerked for a Reagan appointee, and had donated to both Republican and Democratic candidates in the past. So, my guess, is the Trump administration took Cardin and Van Hollen up on it, figuring that a moderate nominee was better than no nominee at all.
The Obama-nominated Judge Brann in Pennsylvania has a similar story. At the time, Pennsylvania’s Senate delegation was split between Democrat Bob Casey and Republican Pat Toomey. There were also two judicial vacancies. So the senators cut a deal: Casey would get to pick one judge, Toomey would get to name the other, and both senators would sign the blue slips for both nominees. Brann was Toomey’s pick. (Sen. Dianne Feinstein called him “probably the most Republican judicial nominee from the Obama White House” at his confirmation hearing.)
Blue slips aren’t perfect: critics argue that they exacerbate judicial vacancies (because sometimes it takes a long time for senator and the White House to get on the same page), promote political patronage (senators sometimes recommend their friends or former donors), and lead to “blue courts” and “red courts,” where the judicial map starts to mimic the electoral map.3 Executive branch officials have also snarked that the custom subverts the Constitution’s expected mode of picking judges: “It’s senatorial appointment with the advice and consent of the president,” then-Attorney General Bobby Kennedy once put it.
But the above examples show how blue slips can also help promote a more moderate federal judiciary. Think of a state with at least one senator who hail from the opposite party of the president. A Republican president knows the senator will only sign their blue slip if a judicial nominee isn’t too far to the right. But a Democratic senator also knows the president won’t agree to nominate someone in the first place if they recommend someone too far to the left. So both the senator and the president are incentivized to recommend/nominate someone in the middle if they want to fall the vacancy.
Of course, sometimes this equilibrium breaks down, and senators and presidents of opposite parties can’t agree on someone agreeable to them both, and the vacancy never gets filled. There are plenty of examples of that, too.
What’s more, blue slips aren’t a formal Senate rule — they’re just a custom enforced at the whim of the Judiciary Committee chairman — so in theory the equilibrium could break down at any minute, and the chairman could just stop enforcing blue slips.
That might happen now. Already in Trump’s first term, Senate Republicans stopped enforcing blue slips for appeals court nominees. (In fairness, blue slips never made as much sense at that level, because appeals courts cover multiple states.) Democrats followed suit under Biden. But both parties have continued to respect blue slips for district court judges.
President Trump, apparently, is not enjoying haggling with Democratic senators over his judicial nominees. “I have a Constitutional Right to appoint Judges and U.S. Attorneys, but that RIGHT has been completely taken away from me in States that have just one Democrat United States Senator,” Trump wrote recently on Truth Social, calling on Chairman Chuck Grassley (R-IA) to end the blue slip custom.
Trump even said on Monday that he will file a “lawsuit on blue slipping,” though he wouldn’t be on very firm legal ground. Trump does have the constitutional right to nominate judges and U.S. attorneys. But the Senate has the constitutional right to do whatever it wants with them, through the “Advise and Consent” Clause. Trump can’t sue the Senate for holding up his nominees any more than Obama could have sued the Senate for refusing to vote on Merrick Garland.
The irony here is that Trump isn’t alone in wanting to ditch blue slips: Progressive activists have been calling for an end to blue slips for years. They urged then-Judiciary Committee Chairman Dick Durbin (D-IL) to stop obeying blue slips during the Biden era, which he refused, under the belief that Grassley would reciprocate if Republicans returned to power. (In the meantime, Durbin urged Biden to work with Republicans on nominees. “It is better to get a moderate Republican today than a MAGA Republican tomorrow,” he said then.)
So far, Grassley has held firm in the face of Trump’s pressure, vindicating Durbin. If the Illinois Democrat had listened to progressives under Biden, then Trump’s onetime personal lawyer Alina Habba would likely be a federal prosecutor in New Jersey today. (New Jersey’s Democratic senators refusing to return a blue slip for Habba, and Grassley refusing to move forward with her U.S. attorney nomination as a result, is what launched Trump’s focus on the issue.) Of course, Grassley could fold at any time, and Habba could be confirmed, at which point Durbin will look foolish.
But, for now, the fact that Democrats can block Habba’s nomination might be making progressives think twice about the whole blue slip conundrum.
Beyond any partisan advantage one way or the other, though, I think there’s another reason for senators of both parties to consider preserving blue slips.
Much of the academic literature on this topic focuses on the nominees who get rejected because of blue slips. But I’m more interested in the candidates who get approved because of them.
In fact, you could imagine some pretty easy natural experiments. In the last few decades, there have been years where blue slips were respected and years where they weren’t.
When blue slips are able to block judicial nominations, are the judges who are confirmed more moderate?
Are they more qualified? More independent? More likely to break with the president who appointed them?
Since 2018, when blue slips stopped counting for appeals court nominees, did the appeals courts become less moderate? Less independent?
In particular, when blue slips are in effect, do we notice anything different about judicial nominees from states with senators who don’t belong to the president’s party?
None of this has ever been systematically studied, but my hunch is that blue slips lead to a more heterodox federal bench, for the simple reason that they force bipartisan cooperation on judicial nominations. Seeing as the judiciary has become such a partisan hot button, it’s something of a wonder that blue slips still exist at all. Maybe they’re one reason that federal district judges, as a group, are actually not that partisan, despite what we might expect.
At least in states with senators from the other party as the White House, blue slips are what give us a few Democratic Trump nominees and Republican Obama nominees — which probably wouldn’t be the worst thing in the world! Our judiciary should have independent thinkers, and we shouldn’t always be able to guess how they’ll rule based on who appointed them. The fact that there are nominees who more accurately be described as a Van Hollen-Trump nominee, or a Toomey-Obama nominee, is probably a healthy thing for our judiciary.
Blue slips can also promote moderation in other states, too.
Because of the expectation, via blue slips, that senators will recommend judicial nominees to the president, senators often have commissions set up to screen candidates, many of which are bipartisan (even if the Senate delegation is not). These commissions are usually made up of well-respected attorneys from the state, which (hopefully) leads to nominees who are well-respected attorneys from the state, as opposed to a White House-led process that might be less sensitive to local preferences and elevate political allies of the president.
You also see blue slips creating all sorts of interesting bipartisan deals, a dying art form in Washington. In addition to the Toomey/Casey paired nominees, in Illinois, the tradition is that the party out of the White House gets to pick one judicial nominee for every three that the party in the White House gets (even if the state’s Senate delegation is only Democrats). That’s how Durbin ended up convincing Trump to name his first LGBT judicial pick.
For a long time in New York, Democratic Sen. Daniel Patrick Moynihan had an arrangement with his Republican colleagues (Jacob Javits, then Al D’Amato) where the party out of the White House could pick one out of every four judicial nominees from the state. That’s how one Sonia Sotomayor ended up getting nominated to her first judgeship by none other than Ronald Reagan, due to Moynihan’s recommendation.
Blue slips scramble the lines of the federal judiciary at least a little bit, ensuring that some center-left nominees get through in Republican years and some center-right nominees join the bench during Democratic years. And they push nominees from both parties to the middle.
For blue slips to work, both parties have to play along: the minority party has to work with the White House to recommend nominees the president could reasonably get behind, and the majority party has to accept the annoyances of the blue slip system.
Political parties aren’t good at accepting annoyances any more, which means this institution will likely die eventually: one party or the other will cave to the pressure of its base (or its president) and kill off the tradition, raking in gains in the short term even if it means surrendering future power in the long term. (Blue slips are sort of a one-man judicial filibuster, and this is exactly what happened to the actual judicial filibuster, and probably will happen to the legislative filibuster too.)
Perhaps one answer could be to codify blue slips in Senate rules, so it’s out of the hands of one man (the Judiciary chairman), but with the addendum proposed by Victoria Bassetti: that blue slips will only be respected for senators who made their recommendations through bipartisan screening commissions. If senators put in the work to find serious nominees, their feedback will be taken into account. If they merely use blue slips to obstruct the process, they will be ignored.
Until then, I still don’t think my critics are right: because so many senators use blue slips to obstructive ends, presidents usually end up filling the bench in states where their party controls the Senate delegation, making the appointing president a telltale sign of how a judge will lead. But, occasionally — when the system works — there are exceptions, judges who cut against the grain, because they were picked by a president and a senator, across party lines.
My guess is a Trump-appointed-judge-from-a-blue-state will be more likely to rule with Trump than your typical Obama judge, but less likely than a Trump judge from a red state, who was confirmed without any bipartisan consultation. (Another great natural experiment!) In other words, they won’t be as predictable, falling more in the middle.
Shouldn’t those sorts of judges be encouraged, not diminished?
Note here that, confusingly, there are two things on Capitol Hill known as “blue slips.” On the House side, a blue slip is the document sent to the Senate when the House deems that the upper chamber has improperly originated a bill dealing with taxes and spending, despite the Constitution’s insistence that all such bills start in the House. These are the House’s way of saying, “You shouldn’t have passed this bill and sent it to us! We should have passed it, and sent it to you! So we’re sending it back without voting on it, and if we want to address spending or cut taxes, we’ll let you know.”
But blue slips mean something different on the Senate side, which is what this article addresses.
Note this caveat, it will become important later.
That last one is often true! Because of blue slips, when you hear of a federal judge from a blue state or a red state, no matter which president appointed them, you should always keep in mind that the senators from that state would have had to approve them. That can be a helpful rule of thumb for you, since it gives another layer of context when considering that judge’s presumptive judicial philosophy as context for their ruling.
Gabe, you always do a great job in clear descriptions of complex issues. The "blue slip" article is fascinating!
Mark Taylor
Federal judges have life time appointments. That should be sufficient to promote impartiality. I think adding the information about which President appointed them promotes an assumption of partiality. Any practice like the blue slip that promotes horse trading and/or bi-lateral cooperation is a plus to me.