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WASHINGTON (CN) — After a federal judge ruled that President Donald Trump broke the law by trying to install his one-time personal lawyer as New Jersey’s top prosecutor without congressional approval, conservatives have taken fresh aim at a top Senate Republican and his defense of a long-standing practice stymieing her nomination on Capitol Hill.
U.S. District Judge Matthew Brann concluded Thursday that Alina Habba had been unlawfully serving as acting U.S. attorney for New Jersey since July, when the Trump administration used an unusual legal move to keep her in the role beyond the 120-day term afforded to temporary federal prosecutors under the law.
The White House had used the creative legal gambit — which involved withdrawing Habba’s Senate nomination, firing her court-appointed replacement and installing her as New Jersey’s first assistant U.S. attorney — to end-run around Habba’s long-stalled appointment. The Garden State’s Democratic senators, Cory Booker and Andy Kim, had invoked a tradition known as blue slipping to prevent her nomination from coming to a vote.
Speaking to Fox News Thursday evening, Habba blasted the New Jersey senators, saying they had “truly done us a disservice” with their opposition.
But she also criticized Iowa Senator Chuck Grassley, arguing that the Senate Judiciary Committee chairman was “holding up a traditional blue slip and not a law, not allowing a lot of the president’s picks to go through and be voted on by the Senate.”
“I didn’t even get to that point,” Habba added.
Grassley has for months defended the blue slip process, a somewhat arcane Senate tradition which allows lawmakers to effectively block certain judicial nominees whose jurisdictions would include their home states. The practice is designed to help insulate senators from poor or unqualified nominees selected by the president.
Though the tradition has eroded somewhat in an increasingly partisan Senate — Grassley himself in 2017 stopped honoring blue slips for appellate judgeships — it has remained intact for federal district court nominees and U.S. attorney appointments.
And the top Senate Republican has so far remained firm in his defense of the blue slip, despite mounting pressure from conservatives and even Trump himself to abandon the practice.
Asked for Grassley’s response to Habba’s comments, a spokesperson for the senator referred Courthouse News to a statement he made during a Tuesday Q&A session with constituents in Mitchell County, Iowa.
“The blue slip has been a practice of the Senate for 100 years,” he said. “And it’s a very important part of the process, respected by both Republican majorities and Democrat majorities.”
Grassley pointed out that Senate Minority Whip Dick Durbin, who chaired the Judiciary Committee under then-President Joe Biden, had honored blue slips for Republican senators. “[H]e respected blue slips, I’m respecting the blue slips. And almost every one of the 100 senators want to keep the blue slip policy.”
Trump has called the blue slip tradition a “hoax” and a “scam,” positioning it as little more than a tactic employed by Democrats to place a blockade on his judicial nominees. In a social media tirade in July, he demanded that Grassley stop honoring them.
“Put simply, the president of the United States will never be permitted to appoint the person of his choice because of an ancient, and probably unconstitutional, ‘CUSTOM,’” the president wrote at the time. He did not provide any evidence that the use of blue slips violates the Constitution.
Grassley last month said he was “offended” by Trump’s comments — the president referred to some of the senator’s Democratic colleagues as “sleazebags” — and said that he would continue to abide by the blue slip tradition.
And the Iowa senator repeated his criticism of the president on Tuesday.
“I don’t think he’s considered how it has benefited him,” Grassley told constituents, pointing out that Trump has roughly 28 judicial vacancies to fill thanks to Democrats honoring GOP blue slips under the Biden administration.
“If we had not had the blue slip, those judges’ positions would have been filled by very liberal … people that don’t respect the original intent of the Constitution,” he said. “They can have Trump-type people put in those positions now.”
Though some conservative activists have continued calling for the end of the blue slip tradition, others have said that such changes to established Senate policy shouldn’t be done without majority approval.
Mike Davis, founder of the Article III Project and a close adviser to the White House on judicial nominations, broke with Habba’s argument that Grassley was responsible for stalled appointment, writing in a post on X Thursday night that it wasn’t “a Grassley problem.”
“This is a century-old Senate problem called the blue slip,” Davis said, adding that Trump’s U.S. attorney, U.S. marshal and federal district court nominees would fail on the Senate floor without support from home state senators.
“Go round up 50 votes,” he said. “Then let’s talk.”
Meanwhile, New Jersey’s senators applauded Thursday’s ruling that Trump had illegally appointed Habba and called on the White House to reappoint Desiree Grace, the interim U.S. attorney who was selected to replace her and subsequently fired.
“Trump’s attempted manipulation of the law to install his personal attorney, Alina Habba, as U.S. attorney was clearly unlawful as the court recognized today,” Booker said in a statement. “This legal limbo continues to thwart our prosecutors’ ability to tackle crime in every federal case across the state, putting public safety at risk.”
The Justice Department has said that it will appeal the court’s decision.
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