With spotlight on Stras' Eighth Circuit nomination, new uncertainty for other Minnesota vacancies

Key federal law enforcement posts in Minnesota remain unfilled months into the new presidential administration with little indication of when that will change, even as President Donald Trump has nominated dozens of candidates for U.S. attorney posts and federal judgeships across the country.

Earlier this year, Minnesota's three Republican congressmen aligned behind Minneapolis attorney Kevin Magnuson to fill the state's vacant U.S. attorney position. But at least three candidates backed by Democratic U.S. Sens. Amy Klobuchar and Al Franken also met with White House officials to interview for the same job, according to multiple sources with knowledge of the process.

Initially, Klobuchar and Franken unsuccessfully lobbied for the reappointment of former U.S. Attorney Andrew Luger, who was one of 46 U.S. attorneys appointed by President Barack Obama ordered to resign after Trump took office. After it became clear that wouldn't happen, Klobuchar and Franken announced in May that they, too, were taking applications.

The prospect of Minnesota's two Democratic senators having a say in who gets named to that post — plus either of two U.S. District Court judgeships and U.S. marshal — rankled some local conservatives.

The situation grew even murkier last month, when Franken announced his opposition to a U.S. Senate hearing for Minnesota Supreme Court Justice David Stras, whom Trump nominated to the Eighth U.S. Circuit Court of Appeals.

That raised questions about the future of the "blue slip" process in the U.S. Senate, which has traditionally afforded home-state senators a major say over prospective federal judges from their turf. It also left many to wonder whether a stalled Stras nomination would affect prospects for filling Minnesota's other federal openings.

Minnesota's two federal court positions have been open since May 2016 and October 2016, respectively.

Sources have said the White House at one point floated the possibility of nominating a candidate recommended by Klobuchar and Franken in exchange for their blessing for a Senate hearing for Stras, who has been described as a priority for the administration.

Senators customarily advise the White House on federal nominations in their home states. But when both senators represent a political party opposite the president, the White House also often consults the senior-most House representative from the president's party.

Earlier this year, all three of Minnesota's Republican congressmen signed letters of support for Magnuson, who is the son of a senior federal judge in Minnesota. Magnuson has since received a positive interview with the White House, a source said, but the senators also opened up their parallel application process around the time of Magnuson's recommendation.

A spokesman declined to comment on behalf of Republican Rep. Erik Paulsen, who previously organized a search committee to recommend judges to the White House, but who has been less public about his role in helping find a new U.S. attorney. Paulsen has been publicly critical of Franken and Klobuchar for not doing more to enable Stras' confirmation by the Senate.

After Franken announced he would not return his blue slip, thus stalling Stras' nomination, Klobuchar said in a statement that she would have supported a Senate hearing for Stras, and sources said she indeed returned a blue slip for his nomination. But she also said that the White House "will need to provide additional names for the 8th Circuit position."

Klobuchar and Franken collected applications for U.S. attorney back in June and said they interviewed candidates in July. A source said Klobuchar largely took the lead on recommending three local lawyers as U.S. attorney candidates and emphasized their past experience as prosecutors.

This summer, in addition to interviewing Magnuson, the White House also considered Minneapolis attorneys backed by the senators, including Joseph Dixon III, Anders Folk and John Marti — all former assistant U.S. attorneys.

Mychal Vlatkovich, a Klobuchar spokesman, said the senators convened a bipartisan board of advisers that, she said, recommended several people whose names were forwarded to the White House.

"The White House has had those names for several months and the counsel's office indicated that those candidates would receive interviews," Vlatkovich said. "We believe some if not all of those interviews have occurred and we are now awaiting the final decision from the White House and the Department of Justice on which candidate they will nominate."

Jon Hopeman, a Minneapolis attorney and former federal prosecutor who was interviewed by the White House for a judicial vacancy in 2005, called the dueling search processes unusual.

"You don't generally see candidates from both parties appear," Hopeman said. "This suggests that the senators think they have power or their own voice in this or they wouldn't be doing what would otherwise be a hollow exercise."

The White House remains focused on Stras' nomination, and a spokesperson told the Star Tribune that the administration is "optimistic that Senator Franken will not deny Justice Stras a public hearing at the Senate Judiciary Committee."

Senate Majority Leader Mitch McConnell, a Republican, has said publicly that he does not think the blue slip process should give individual senators the ability to block Circuit Court appointments. Sen. Chuck Grassley, chairman of the Judiciary Committee, has also hinted he might reconsider the tradition.

In the meantime, it is unclear when or whether the White House will take action on Minnesota's other federal vacancies. Of the 50 U.S. attorneys that Trump has nominated so far, just two came from states with two Democratic senators, and none of the president's 38 District Court nominees so far is from a state with such representation.

As of Thursday, 50 U.S. attorneys' offices were being led on an acting basis, according to the Department of Justice.

Carl Tobias, a University of Richmond law professor who follows judicial selection, said the administration has been moving at a decent pace in recommending judges and federal prosecutors. But, Tobias said, the White House's focus thus far on Republican-dominated states has avoided addressing some of the courts' 61 "judicial emergencies" — vacancies deemed high priority either based on a calculation of filings per judgeship or on the amount of time the seats have been open.

Tobias also said a decision on Stras' nomination may not materialize before year's end. Grassley could opt to schedule hearings only for nominees whose home-state senators have returned blue slips. Some Stras supporters have raised the prospect that Trump could decide to pick a new Eighth Circuit nominee from another state in the region with two Republican senators.

Meanwhile, Minnesota waits for a handful of its most important federal law enforcement posts to be filled, with no certainty about when that might happen.

"A lot depends on the senators working together with House members," Tobias said.

Staff writer Jennifer Brooks contributed to this report.

Stephen Montemayor • 612-673-1755

Twitter: @smontemayor