The UnPopulist: A Democratic Toolkit for Using a Midterm Win to Check Trump and Force a Reckoning
This excerpt is from a piece that originally ran on October 26, 2026.
The lower courts matter, too, and on this the second term has been far worse than the first. The Alliance for Justice’s review of last year’s nominees found them far more extreme than the first-term picks, with loyalty to Trump now a prerequisite. Nominee after nominee refused to say plainly that Biden won in 2020.
Emil Bove is the clearest example. A former Trump defense lawyer, he was accused by a Justice Department whistleblower of telling subordinates to defy a court order halting deportation flights of migrants to third countries. The Senate confirmed him to a federal appeals court 50-49. He is typical of the second-term nominees rather than an exception to them, and every such confirmation is a lifetime seat.
For the lower courts, a Democratic Senate needs to restore a practice that is a century old, not invent anything radical. Before the Judiciary Committee takes up a court nominee, it asks each of the nominee’s home-state senators to return a blue slip signaling approval. For much of that century, a nominee without both slips did not get a hearing. In 2017, Chuck Grassley, as chairman of the Judiciary Committee, stopped honoring it for appeals court nominees, which is how Trump has filled the circuit courts over the objections of Democratic senators. For district judges and U.S. attorneys, the practice has held, and Democrats can and should use it aggressively.