The media has a story it tells on a loop: Trump-appointed judges keep ruling against Trump. A Politico review counted more than 350 federal judges who have rejected the administration’s ICE mass-detention strategy, with dozens of those nominated by Trump himself. Newsweek ran the same narrative when it reported that U.S. District Judge Mary S. McElroy — a “Trump-picked judge” — quashed a Department of Justice subpoena and referred DOJ attorneys for potential discipline for “reckless disregard” of court procedures.
The story is designed to convey that even the president’s own originalist appointees have found his agenda legally indefensible. It is, at best, a profound distortion. The explanation is not a conspiracy. It is a Senate tradition almost no one in the press bothers to explain: the blue slip process.
What the Blue Slip Actually Is
A blue slip is precisely what it sounds like — a blue piece of paper. For more than a century, the U.S. Senate Committee on the Judiciary has sent this form to the two home-state senators of every presidential nominee for a U.S. district court judgeship, U.S. Attorney slot, or U.S. Marshal slot in their state. Each senator signs and returns the form — or does not. If a home-state senator withholds the blue slip, the Judiciary Committee chair, by long-standing tradition, will not schedule a confirmation hearing. No hearing means no committee vote, no floor referral, and no confirmation.
The constitutional grounding is Article II, Section 2, which requires the president to nominate federal officers “by and with the Advice and Consent of the Senate.” Senate Judiciary Committee Chairman Charles E. Grassley of Iowa defends the blue slip as “a mechanism to implement the Senate’s constitutional obligation to offer advice and consent,” and has elaborated:
“The blue slip preserves the ability of lawmakers to shape the types of prosecutors and judges who serve the public, uphold the rule of law, and resolve disputes in the community.”
Whether that justification is persuasive is a separate question. What is beyond dispute is that the tradition operates — and carries immediate consequences for every Trump nominee in a blue state.
What Changed in 2017 — and What Did Not
In 2017, Chairman Grassley ended the blue-slip veto for circuit court nominees — judges on the U.S. Courts of Appeals. His reasoning was sound: circuit courts are multi-state tribunals. A judge on the First Circuit presides over appeals from Maine, Massachusetts, New Hampshire, Rhode Island, and Puerto Rico. Two senators from a single state should not veto a judge whose jurisdiction spans an entire region.
For district courts, however — the federal trial courts that are generating every one of these headlines — the blue-slip tradition remains firmly in place. A district court seat in Rhode Island is a Rhode Island seat. The same applies to U.S. Attorney and U.S. Marshal positions. If the home-state senators are Democrats, they retain an effective veto over every Trump nominee for those slots in their state.
The practical result: in blue states, President Trump cannot simply nominate an originalist conservative to a district court bench. He can name a candidate, but if the Democratic senators decline to return their blue slips, the Judiciary Committee will not act and the seat stays vacant. The only path to filling those seats runs through political compromise.
The Rhode Island Illustration
Judge Mary S. McElroy is the ideal illustration of how this works in practice. She was nominated by President Trump in May 2019, during his first term, and confirmed by the Senate in September of that year. She sits on the U.S. District Court for the District of Rhode Island.
Rhode Island’s two senators — Sen. Jack Reed and Sen. Sheldon Whitehouse — are both Democrats. Both returned their blue slips endorsing her nomination. That is not a coincidence; it is the whole point. The only candidate who could have been confirmed to that seat was a candidate those two Democratic senators were willing to sign off on. Whatever label the press applies to Judge McElroy, she is not, in any meaningful sense, a product of President Trump’s unilateral judgment about who should sit on the federal bench in Providence.
When Judge McElroy quashed the DOJ subpoena demanding patient records from Rhode Island Hospital regarding gender-affirming care for minors, and then referred DOJ attorneys for potential discipline, Newsweek called her a “Trump-picked judge.” That label is accurate and misleading in equal measure: Sens. Reed and Whitehouse had far more to do with her presence on that bench than the president whose nominees they had already effectively screened.
What This Means for Your Rights
This dynamic is not an academic exercise. The federal judiciary determines the fate of Second Amendment cases, immigration enforcement, and every other contested area of constitutional law. When district courts in New York, California, Washington, Hawaii, Illinois, and Maryland produce rulings that thwart executive action or erode constitutional rights, the question worth asking is who actually selected those judges.
My read: the blue-slip tradition allows sitting senators a structured voice over who might prosecute them (U.S. Attorneys), who might arrest them (U.S. Marshals), and who might judge them (district court judges). That is a formidable set of interests to protect. The tradition is not neutral — it is a lever of institutional power, and in states with two Democratic senators, it is a lever that constrains the executive’s ability to staff the bench with nominees who share his judicial philosophy.
The next time a headline announces that a “Trump judge” has ruled against the administration, check the state. If it is a deep-blue state, pause before accepting the media’s framing. That judge is far more likely to reflect the preferences of the senators who cleared the nomination than the legal philosophy of the president whose name appears on the nominating papers.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.