Democrats have so far failed to derail any of President Trump’s nominees, lacking the numbers in the Senate to block them. But they are about to test their ability to use an arcane Senate tradition to stop Mr. Trump from installing one lesser-known but critical category of nominee: federal prosecutors.
For decades, heads of the Senate Judiciary Committee of both parties have sought the approval of home-state senators before moving ahead with the nominations of U.S. attorneys, waiting to proceed until they receive what is known as a “blue slip” indicating the senators’ approval.
Senator Chuck Schumer, the New York Democrat and minority leader, will be the first to challenge Mr. Trump on his selections, by refusing to return blue slips consenting to consider the nominees for two top posts in New York: Jay Clayton to be the U.S. attorney for the Southern District and Joseph Nocella Jr. to be the lead prosecutor in the Eastern District.
“Donald Trump has made clear he has no fidelity to the law and intends to use the Justice Department, the U.S. attorney offices and law enforcement as weapons to go after his perceived enemies,” Mr. Schumer said in a statement to The New York Times confirming his intent to withhold the blue slips. “Such blatant and depraved political motivations are deeply corrosive to the rule of law and leaves me deeply skeptical of Donald Trump’s intentions for these important positions.”
His position is likely to anger the White House. But in a recent interview, Senator Charles E. Grassley, the Iowa Republican who leads the Judiciary Committee, said that he intended to respect the blue slip tradition. Given Mr. Schumer’s stance, that means the two high-priority nominations of Mr. Trump are on track to die in the committee without receiving a vote.
“The answer is yes,” Mr. Grassley said when asked whether he would honor the blue slip position of senators. “If they are from the state the nomination comes from.”
Mr. Clayton served as chairman of the Securities and Exchange Commission in the first Trump administration after being confirmed on a bipartisan Senate vote in May 2017. Within days of his election victory last November, Mr. Trump said that he intended to put Mr. Clayton up for the prestigious prosecutorial post. He officially nominated him on his first day in office.
Mr. Clayton was considered an unusual selection for the high-profile position because he lacked prosecutorial experience. But Mr. Trump has shown that he puts a premium on placing people he trusts in critical law enforcement positions. Mr. Clayton made it clear after the election that he would join the administration if the president requested it.
Mr. Nocella, a Nassau County district court judge since 2022, has deep ties to Republican politics in the region. He also once served as a prosecutor in the office he was nominated to oversee. In nominating Mr. Nocella, Mr. Trump credited him with a tough crime-fighting record.
Blue slip privileges are better known for giving senators veto power over judicial nominees. But they have also long been extended in considering the nominations of federal prosecutors and U.S. marshals confirmed by the Judiciary Committee.
The blue slip tradition is neither a law nor a rule. But like many things in the Senate, it has taken hold over time and is now considered sacrosanct. The practice dates to the early 1900s, when the powerful posts were considered patronage positions — plum jobs to distribute to supporters and prominent constituents. Southern senators eventually used blue slips to prevent the confirmation of judicial nominees who might have been more aggressive enforcing civil rights laws.
Urged on by Senator Mitch McConnell, the Kentucky Republican and majority leader at the time, Mr. Grassley in 2018 weakened the power of the blue slip for federal appeals court judges. He and Mr. McConnell argued that their jurisdictions typically cover multiple states and nominees, and therefore should not be subject to the whims of single lawmakers.
Democrats followed the same policy when they won back the majority.
But Democrats and Republicans have stuck with the blue slip power for trial-level district court judges, U.S. attorneys and federal marshals. Most see it as a valuable mechanism to wield power in the Senate.
Senators want to retain influence over judges and prosecutors in their states and want to force presidents to negotiate with them over who fills those jobs. When Mr. Trump moved quickly after the election to say that he would nominate Mr. Clayton, it was clear that he had not consulted with the New York senators.
Some Republicans on the committee said that they supported adhering to the blue slip policy for district court judges and prosecutors even if it could lead to Democrats blocking nominees.
“It serves a useful purpose even when in Democratic hands,” said Senator John Cornyn, Republican of Texas and a longtime member of the Judiciary Committee. “Obviously we value the ability to, appropriately, stop some nominees.”
“I definitely want to honor blue slips, 100 percent,” said Senator Lindsey Graham, Republican of South Carolina, who has led the committee in the past.
Mr. Schumer’s action does not mean that Democrats intend to reflexively block the Trump administration’s picks for prosecutorial jobs in their states. One Democrat said privately that if Mr. Trump nominated someone acceptable and experienced, that person would be preferable to an unacceptable acting nominee.
One nominee Democrats have made clear they do not support is Ed Martin, the interim U.S. attorney in Washington who has come under fierce criticism for some of his actions. His interim status expires next month. But with no elected senator, the District of Columbia has no one in position to try to veto him by denying a blue slip.
Senator Adam Schiff, Democrat of California, put a hold on Mr. Martin’s nomination. But unlike with a blue slip, the majority can override a hold with a vote on the Senate floor.
The Judiciary Committee has historically not held confirmation hearings for the 93 U.S. attorney positions, and most are typically confirmed with no roll call vote.
When he was a Republican senator from Ohio, Vice President JD Vance put holds on multiple U.S. attorneys, citing the Justice Department’s targeting of Mr. Trump. The tactic stalled their confirmations because Democrats in the majority did not want to use scarce floor time to try to move through the prosecutors.
