Now that President George W. Bush has nominated Michael Mukasey to succeed Alberto Gonzales as attorney general, the question is how much influence the retired federal judge will wield in filling the unusually high number of vacancies at the Department of Justice.
Most of Gonzales' management team crumbled in the past nine months with the resignations of top administrators and political appointees. Many of those came in part because of the controversial firings of nine U.S. Attorneys in 2006 and the ensuing congressional hearings and internal investigations.
Bush nominated Mukasey for the post last week. The Senate Judiciary Committee has yet to set a hearing date, but Mukasey is widely viewed as a consensus nominee who will be confirmed.
If that happens, former Justice officials and past administration appointees say Mukasey, who retired last year as chief judge on the U.S. District Court for the Southern District of New York after 18 years, may have an opportunity to put his stamp on the department. That is, if the White House allows him to.
"If Mukasey is confirmed, he will have substantial input," says Michael Greenberger, a University of Maryland law professor who served in the sssociate attorney general's office under Attorney General Janet Reno. "Mukasey has been brought in there to clean up the Department of Justice. ... He has a chance to completely remake the department right now."
LONELY AT THE TOP
Viet Dinh, a former assistant attorney general in the Office of Legal Policy under Attorney General John Ashcroft, says Mukasey's first job will be to fill the key jobs.
"There's no question that there is a vacuum of Senate-confirmed leadership in the department," says Dinh, now a professor at Georgetown University Law Center. "Only during a period of administration transition do you see this number of vacancies."
One area where Mukasey may look to recruit talent is his former stomping grounds, the Southern District of New York, home to a number of former prosecutors, judges, law clerks and others willing to answer his call.
He may also look inside Main Justice for recruits.
Despite the ongoing exodus of division chiefs and veteran career attorneys, observers say there are still some officials left in key posts, such as National Security Division Assistant Attorney General Kenneth Wainstein, who are highly regarded and could be tapped for higher-level positions.
Designating the most important positions -- the No. 2 and No. 3 posts of deputy attorney general and associate attorney general -- is normally done through a give-and-take process among the attorney general, the Office of White House Counsel and other presidential aides. But, just as a candidate for a job can set conditions upon an employer's offer, nothing stops a nominee from seeking more authority in vital decisions.
"Unless Judge Mukasey negotiated some different procedures for himself at the outset, all those other positions will be filled through a collaborative process between the judge and the White House," says Bradford Berenson, a Sidley Austin partner and former associate counsel to President George W. Bush from 2001 to 2003. "It's not the rule but the exception."
Noel Francisco, a Jones Day partner and a former attorney in the Office of Legal Counsel and associate White House counsel, says "consensus" choices usually get the president's approval for the people they want for political appointments.
Francisco says Mukasey, as a member of the president's Cabinet, will not be blindsided by White House aides' picks. "I don't think you're going to see ramming [appointees] down anyone's throats," he says.
Several of the key posts are being filled on a temporary basis. Such is the case with Acting Deputy Attorney General Craig Morford and Acting Associate Attorney General Gregory Katsas, both of whom took their respective roles in early August. Morford replaced Paul McNulty, who resigned to join Baker & McKenzie, and Katsas took over for William Mercer, who returned to his former post as U.S. Attorney in Montana. McNulty and Mercer both were at the center of the U.S. Attorney firings.
Similarly, Brett Gerry became acting assistant attorney general in the Office of Legal Policy in July, after Rachel Brand resigned toward the end of her pregnancy.
Others serving on an interim basis include Richard Morrison, the acting assistant attorney general in the Tax Division, who replaced Eileen O'Connor, now with Pillsbury Winthrop Shaw Pittman, and Rena Comisac, who is a principal deputy assistant attorney general and has headed the Civil Rights Division since the recent departure of Wan Kim.
None of these officials' names have been submitted for nomination, and there are questions as to whether Mukasey will keep them in place or try to replace them with fresh faces.
Mukasey may also have some say as to what to do about Steven Bradbury, the principal deputy assistant attorney general at the Office of Legal Counsel. His nomination has languished for more than two years because of Senate opposition. Another official awaiting confirmation is Ron Tenpas, the acting assistant attorney general for the Environment and Natural Resources Division, who was just nominated in June.
Jamie Gorelick, a WilmerHale partner and former deputy attorney general under President Bill Clinton, says the sheer number of vacancies at the Justice Department might lead to a break in tradition and allow Mukasey to have more say in who should be presidentially appointed.
"Ultimately, it's the president's decision, and normally that's arrived at with considerably lots of input from the Office of White House Counsel," she says.
Others with links to the White House suggest that Mukasey must have negotiated with the president's staff his terms for pulling together his staff.
Those same officials suggest that the Department of Justice, as do many other federal agencies, lacks diversity in leadership positions, and Mukasey's arrival may offer an opportunity to change that.
Other political positions that don't require Senate confirmation, such as deputy assistant attorneys general, have less White House input, Berenson says. There are seven such positions vacant, including one each in the Criminal and Tax divisions.
THE 'SOVEREIGN DISTRICT'
Donald Ayer, a partner at Jones Day and former deputy attorney general under President George H.W. Bush and principal deputy solicitor general under President Ronald Reagan, says Mukasey needs to get "independent people who will answer to him ... not political functionaries."
Some of these could be current and former federal prosecutors in the Southern District who may be practicing law elsewhere.
"They have a very positive opinion of him," Ayer says. "I think there's a reservoir of people ... who would answer the call."
Dinh, likewise, notes that the New York district is "colloquially called the Sovereign District of New York" and has a stellar reputation that perpetually attracts the best in the business.
"They are the premier prosecution office in the country," Dinh says. "They draw upon the best lawyers in the country, so it's a natural place for Main Justice to look in order to find people of high caliber. Given that Judge Mukasey came from SDNY, one would think that he would naturally look there."
