Trump’s Planned Suit Over Senate Blue Slips Faces Slim Odds

President Donald Trump’s promised lawsuit over a Senate tradition is teed up to run headlong into case law against litigation that challenges congressional rules.

Judges have repeatedly ruled that parties asking courts to force the Senate to act haven’t cleared the necessary jurisdictional barriers to have the merits of their arguments considered. Law professors predicted that Trump’s case against home state senator’s necessary approval for some nominees like judges under the “blue slip practice” won’t have much success either.

“The Constitution gives each House the authority to set its own rules,” said Dave Rapallo, a law professor at Georgetown University who’s worked for congressional Democrats. “The Senate gets to determine how it will run its own proceedings. That’s a direct, constitutional grant of authority.”

The Supreme Court in an 1892 unanimous opinion reiterated that Congress can set its own rules, if they comply with the Constitution and don’t violate fundamental rights. “It is a continuous power, always subject to be exercised by the house, and, within the limitations suggested, absolute and beyond the challenge of any other body or tribunal,” the unanimous court said in United States v Ballin.

The court again in 1975 said the invocation of the Constitution’s Speech or Debate clause—which grants immunity to members of Congress from lawsuits tied to legislative acts—prevented judges from blocking congressional action.

“The speech or debate protection provides an absolute immunity from judicial interference,” the court said in an 8-1 ruling in Eastland v United States Servicemen’s Fund.

The political questions doctrine would also likely be implicated, as it instructs courts not to hear cases that would step on the political branches’ powers.

“The chances of this succeeding are very low because the courts are completely unlikely to engage in what they perceive to be a clearly political controversy about the internal workings of the Senate,” said Victoria Nourse, a Georgetown University law professor whose nomination to an appellate court was blocked under a blue slip.

Past Rulings

It’s unclear whether a lawsuit has ever been filed directly challenging blue slips before.

The roughly 100-year Senate tradition says members can block nominees for federal appointees within their states—namely, federal judges, US attorneys, and US marshals.

Courts have rejected other bids to force the Senate to act on judicial nominees, like Barack Obama’s selection of Merrick Garland to sit on the Supreme Court and George W. Bush’s pick of Miguel Estrada for the DC Circuit. They’ve also ruled against legal bids to block consideration of Justice Amy Coney Barrett’s nomination to the high court.

The Ninth Circuit in 2016 affirmed the dismissal of another challenge to cloture, another Senate rule used in considering nominees.

Alina Habba, Trump’s pick to serve as the top federal prosecutor in New Jersey, has been vocal about blue slips in recent days.

Rapallo said, if Habba were to be part of the future lawsuit, she’s unlikely to be able to prove she’s been injured by the protocol, one of the requirements for a judge to consider a claim.

“I don’t believe an individual has a right to a vote if the Senate decides not to call up a certain nominee,” Rapallo said, noting that the Senate often doesn’t act on nominations.

Judiciary Committee Chair Chuck Grassley (R-Iowa) said on social media that the Senate never received the necessary paperwork to vet Habba’s nomination before it was pulled, as part of an effort to install her as acting US attorney after her interim appointment expired and New Jersey’s US district judges declined to tap her for the job.

The blue slip requirement was eliminated for appellate court picks while Grassley chaired the committee during Trump’s first administration. But Grassley has said he won’t remove them for district court nominees, and Sen. Thom Tillis (R-N.C.) is also standing by the tradition.

Michael Fragoso, a partner at Torridon Law and former chief counsel for former Senate Majority Leader Mitch McConnell (R-Ky.), has defended the use of blue slips. He said it’s helped conservatives block Democrats from making appointments in states with at least one Republican senator, and those slots are now open for Trump to fill.

He said that Trump has been effective in using other maneuvers. The administration has taken advantage of the Federal Vacancies Reform Act to install acting US attorneys in some offices.

“I can understand why he’s frustrated by it, but there are tools at his disposal,” Fragoso said of Trump. “And this is an issue where what comes around, goes around.”

Trump v. Senate

The Senate Legal Counsel or Justice Department typically represents senators in court. If this lawsuit is filed by DOJ attorneys, the Senate office would likely defend blue slips in any litigation.

The Senate typically passes resolutions to authorize the Senate Legal Counsel to act in court, and a bipartisan leadership group can also sign off on their actions.

The optics idea of fighting Trump in court could cause unease among some of the president’s allies. Still, Fragoso said when it comes to institutional issues for the Senate, typically “leadership comes together and agrees” to let the chamber’s lawyers handle it, even when there’s a political element to the litigation.

Trump repeatedly litigated against the Democratic-controlled US House during his first term, as lawmakers sought to investigate his finances.

The second Trump administration has already sued all of the US district judges in Maryland over a standing order that blocked the immediate deportation of some detained people amid an immigration crackdown. A Trump-appointed judge in Virginia on Tuesday dismissed the suit, and the administration is appealing that ruling.

Nourse said a suit against the Senate “could create an enormous amount of havoc, and I think it’s part of his refusal to accept the separation and divisions of power in our democracy.”

“He’s seeking to accumulate power in the White House, and he apparently has no regard for what are established norms and deference to other departments,” Nourse said.