The United States District Court has been down a judge for over two years, and the U.S. Attorney’s office has sat vacant since March 2017. How did we get here and what’s taking so long?
Both positions require Presidential nomination and Senate approval. Congress, in its infinite wisdom, has bestowed three judgeships on the District of Rhode Island since 1984. When former United States District Judge Mary M. Lisi took senior status on October 1, 2015, it created a vacancy for one of the three seats. President Obama promptly nominated Rhode Island Public Defender Mary S. McElroy to Judge Lisi’s seat. On January 28, 2016, the Senate Judiciary Committee approved McElroy’s nomination by voice vote without objection and sent her candidacy to the full Senate for a final vote. Like some other pending judicial nominations (and some that never received a hearing, like Circuit Judge Merrick Garland for the Supreme Court), the final Senate vote never happened during the remainder of President’s Obama’s term. McElroy’s nomination officially expired when the 104th Congress ended. To date, President Trump has not re-nominated McElroy or selected another nominee.
Unlike District Judges who enjoy lifetime appointments and choose the time of their retirement, U.S. Attorneys serve at the President’s pleasure. The last U.S. Attorney for Rhode Island, Peter F. Neronha, was a holdover from the Obama administration and remained in office when the Trump administration began. This is not uncommon — the new administration has the prerogative to select a new U.S. Attorney for the District, and there’s usually an understanding that the holdover U.S. Attorney is given some time to find a new job.
The confluence of the new administration’s selection process and the holdover U.S. Attorney’s job search results sometimes in the holdover’s resignation by summer. Not this time. At the direction of the President, Peter Neronha abruptly resigned on March 10, 2017, along with forty-five U.S. Attorneys in other districts. The Trump administration has not nominated a successor. In the meantime, the office is run by the First Assistant U.S. Attorney as the Acting U.S. Attorney.
Is the holdup on nominations for a new District Judge and U.S. Attorney another case of vacancies lingering and expiring between administrations? At the end of his second term, President George W. Bush nominated current U.S. Magistrate Judge Lincoln D. Almond to replace District Judge Ernest Torres, and current Chief District Judge Smith to fill Circuit Judge Bruce Selya’s seat on the First Circuit. These nominations expired, and President Obama filled them with District Judge McConnell and Circuit Judge Rogeriee Thompson.
The answer is likely the connection between the Senate “blue slip” tradition and political horse trading over the District Judge seat and the U.S. Attorney position. Nominations for District Judges and U.S. Attorneys are subject to the so-called blue slip procedure in the Senate, which requires both home-state Senators to return an actual blue slip of approval (a blue piece of paper) for the nomination to move forward.
It’s not every day that District Judge and U.S. Attorney vacancies arise at the same time, and a District Judge nominee received unanimous approval from the Senate Judiciary Committee in the prior Congress before her nomination expired, and the President and home-state Senators are from different political parties, and the nominee is probably still willing to serve if re-nominated. Rhode Island’s sitting Senators Jack Reed and Sheldon Whitehouse, both Democrats, supported Mary McElroy’s nomination during President Obama’s administration. They likely take the view that McElroy was a good candidate then and she’s a good candidate now, particularly when no Republicans objected to her unanimous approval in the Senate Judiciary Committee for a full Senate vote.
The Trump administration needs Senators Reed and Whitehouse to return blue slips for any U.S. Attorney nominee. A logical reason for the nomination standstill is political deal-making: Senators Reed and Whitehouse would probably support a U.S. Attorney nominee if President Trump re-nominates Mary McElroy to the District Court. While I have no direct knowledge that these negotiations have taken place, or that this is in fact Senators Reed’s and Whitehouse’s position, it makes the most sense.
So what’s the deal with the District Judge and U.S. Attorney vacancies? The lack of a deal between Rhode Island’s Senators and the Trump administration, probably.