The ongoing stalemate in the Senate over judicial nominations is leading the Justice Department to strategize around the blue slip tradition, a practice allowing home-state senators to weigh in on nominees.
The blue slip process has enabled senators to effectively block nominations, especially when both senators from a state are of the same party.
Democratic senators have withheld blue slips for nominees like Alina Habba and Bill Essayli, leaving crucial positions vacant and stalling judicial appointments.
The situation reflects broader dysfunction in Washington, with defense attorney David Gelman describing it as a broken system.
“The president has a mandate, and that means getting his people in place to do the job,” Gelman asserted.
Adding to the urgency, former President Trump has been vocal about ending the blue slip practice, labeling it outdated and undemocratic.
Trump’s ally, Senate Judiciary Chairman Chuck Grassley, has shown support for resolving the backlog but has resisted calls to abolish the blue slip tradition altogether.
Gelman echoes Trump’s sentiment, indicating that the refusal by senators like Cory Booker and Andy Kim to support qualified nominees is simply obstructionist behavior.
To navigate this logjam, the Justice Department is utilizing the Federal Vacancies Reform Act to keep key leadership positions filled.
For instance, in New Jersey, after Habba’s interim term expired, Attorney General Pam Bondi reinstated her as acting U.S. Attorney to avoid an appointment by the federal court of a new candidate.
Similar actions have been taken in New York and California, where interim leaders are maintained amid ongoing concerns over permanent appointments.
In Nevada, the department recently extended Republican National Committeewoman Sigal Chattah’s interim term to prevent court interference following her initial 120 days.
The DOJ is categorizing this approach as necessary to uphold the executive appointment powers, as the Vacancies Act allows for extensions if proper nominations are in place.
Legal experts have noted the importance of adhering to deadlines under the Vacancies Act when it comes to maintaining authority in these roles.
After a 300-day limit following Inauguration Day, the administration must submit a formal nomination to retain acting appointments.
However, legal fellow Thomas Berry points out a loophole that allows administrations to transfer official duties within their offices even beyond the time limit, effectively creating a way to sustain interim leadership through subdelegation.
This interpretation has found support in academic circles, with University of Utah law professor Paul Cassell suggesting that the law was designed to provide flexibility during periods of political gridlock.
Despite challenges in court regarding Habba’s status, Gelman and Berry believe such motions are unlikely to succeed, given the structure of legal oversight involving multiple attorneys and judges.
Though some Trump supporters advocate for recess appointments as an alternative, Berry argues that under current Senate procedures, this option is compromised.
“Senate rules have effectively shut that down,” he noted, emphasizing that the continuous pro forma sessions prevent any true recess from occurring.
The discourse surrounding the blue slip procedure sends ripples through the Senate, with cautionary voices like Senator Thom Tillis warning that undermining such long-standing norms could harm future appointments.
While the necessity of filling vacant positions is highlighted by some, caution remains paramount among Senate Republicans.
As the political climate continues to favor extensive vacancies, considerations of the broader implications of such actions linger, with observers urging respect for institutional norms.
Berry suggests that given the multitude of loopholes available, adopting a more measured approach and waiting until mid-November may prove less drastic.
By that point, acting appointees could be transitioned to perform the functions and duties of their offices without official ‘acting’ titles, exploiting the subdelegation flexibility built into the Vacancies Act.
This gap in the statute raises concerns among legal scholars, with Berry lamenting that presidents will likely continue to rely on these loopholes instead of adhering to the traditional Senate confirmation process.
Ultimately, the ongoing struggle over judicial nominations is emblematic of a deeper divide within Washington, as competing priorities clash in an environment marked by increasing partisanship and institutional challenges.
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