President Donald Trump's administration has been forced to use interim and acting appointments, allowed by federal law, to keep slots filled in the 94 districts requiring a U.S. attorney as Democrats continue to block his nominees through the "blue slip" tradition.
The Senate has confirmed none of Trump's nominees, and just a dozen have made it through the Senate Judiciary Committee but not onto the floor for a vote, reports The Washington Examiner on Thursday.
The blue slip tradition allows senators to consult with state senators in their home states over who to nominate. Some courts are also reluctant to extend interim assignments, so the Department of Justice has had to use laws such as the Federal Vacancies Reform Act.
"Washington is broken," David Gelman, a defense attorney who practices in New Jersey's federal courts, commented. "We're not in a time where senators all get along and work together."
At the same time, he said, Trump has a "mandate," which means "getting his people in place to do the job."
One key block is in place in New Jersey, where Democrat Sens. Cory Booker and Andy Kim have refused to support Trump's nominee, Alina Habba. California lawmakers are also blocking Bill Essayli for the Central District of California.
The standoff is resulting in cases in New Jersey's federal court system to remain at a standstill, where there are growing concerns about Habba's legitimacy to remain in office, reports NJ.com.
Defense lawyers, speaking on the condition of anonymity, said judges are canceling everything except for bail motions or matters requiring government discretion.
Rutgers Law Professor Thea Johnson commented that the court shutdown is "more extreme on some levels" than what was happening during the COVID-19 pandemic, when courthouses were shut down but proceedings continued online.
Habba, who has served as one of Trump's personal attorneys, came up against a deadline last week in her term as interim U.S. attorney, and with Booker and Kim opposing her nomination, Habba had been limited to 120 days as the interim U.S. attorney.
A committee of federal judges also rejected her nomination, turning to Desiree Grace to take over the office. But the Trump administration fired Grace, after naming Habba as first assistant.
As first assistant, Habba was elevated automatically to the vacant post.
The federal statute allows Habba to keep the job as acting U.S. attorney for the next 210 days or until Trump nominates another person, but the courts' impasse shows no signs of easing. Trump, meanwhile, has called on Senate Judiciary Chairman Chuck Grassley, R-Iowa, to stop the blue slip tradition, but Grassley has pushed back on his urgency to stop the procedure.
The DOJ has used the Vacancies Act in other states as well, including New York, where John A. Sarcone III remains in office, and in California, with Essayli being named on an acting basis.
Meanwhile, some Trump supporters have suggested using recess appointments, but that route may be blocked under current Senate procedures, said legal fellow Thomas Berry.
"The Senate always gavels in and gavels out for a pro forma session every three days," he said. "It doesn't look like they're going to budge on that.
Trump could also wait until mid-November, when acting appointees can become subdelegated 300 days after his inauguration.
But that would be a "workaround" as "there are no meaningful restrictions on subdelegation," Berry said.
Sandy Fitzgerald ✉
Sandy Fitzgerald has more than three decades in journalism and serves as a general assignment writer for Newsmax covering news, media, and politics.
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