According to the website for the U.S. attorney for the District of Utah, Attorney General Pam Bondi on Tuesday appointed the interim U.S. attorney, Melissa Holyoak, to be first assistant U.S. attorney. Holyoak had been named interim U.S. attorney 120 days ago.
From this we can deduce that the District of Utah declined to appoint Holyoak as U.S. attorney following the expiration of her interim term. This is no longer uncommon, having happened in (at least) the Central District of California, the District of Nevada, the Northern District of New York, the District of New Jersey, the District of Wisconsin, and the Eastern District of Virginia.
While I don’t necessarily agree with the judges in those districts, the situation in Utah is easily distinguishable. In almost every one of those cases there was a political backdrop of the executive feuding with home-state senators and therefore, through Senate custom, the Senate. The most recent New Jersey opinion by Pennsylvania’s Judge Matthew Brann was full of purple prose regarding the separation of powers. That couldn’t be further from the truth in Utah.
Holyoak has the support of her home-state senators. She was just reported out of the Judiciary Committee last week. She is now on the Senate floor and presumably will be part of the next en bloc confirmation.
There are also no reasonable questions about Holyoak’s qualifications — unlike in some of these other districts. She was previously solicitor general of Utah and was appointed interim U.S. attorney after honorable service on the Federal Trade Commission, a position to which she was appointed by Joe Biden at the recommendation of Mitch McConnell.
In other words she was a well-qualified incumbent, who has the support of her senators and is cruising to imminent confirmation. Yet the district court still declined to appoint her to the role. Even assuming that district courts, constitutionally, have the robust appointment power that they have asserted under Trump, simple prudence would seem to counsel against this course of action. But prudence is not on order these days.
So what to do? This is quite simply a usurpation by the judiciary, not only of the president’s power but also the Senate’s.
The Senate should send a forceful message to the district judges of Utah — and nationwide — by immediately filing cloture on Holyoak’s nomination and confirming her as soon as practicable. Individual cloture on a U.S. attorney is out of the ordinary, but the Senate needs to assert its authority here.
Unfortunately, it can’t. You see, the Senate today moved to proceed to the SAVE America Act, after which it will undertake some kind of robust and sustained debate on the issue in an attempt to score political points. It’s possible that this will go on until the Easter recess.
One of the reasons the “talking filibuster” fell out of favor was that it ties up the Senate floor, preventing maneuvers like dual-tracking the legislative and executive calendars. As long as Republicans are “playing hardball” on the SAVE America Act, Democrats have zero incentive to provide the consents necessary to process nominees like Holyoak at the same time.
When the Senate is again able to conduct its actual business, hopefully Majority Leader Thune will expeditiously assert its prerogatives and get Holyoak confirmed. Until then, the judicial coup in Utah will go unaddressed.