President Barack Obama began filling the nation’s 93 U.S. attorney positions on Friday, announcing his first wave of six nominees. The move touched off a closely guarded process freighted with symbolism in the wake of the Bush administration firings scandal.
President George W. Bush and President Bill Clinton made their first U.S. attorney nominations days before Congress’ summer recess in August. Each nominated more than two dozen in the first round.
U.S. attorney nominations pose a potential hurdle for Obama, as he reconciles the nature of these plum political posts with his pledge of bipartisanship and Attorney General Eric Holder Jr.’s promise to rid the department of partisan meddling.
Some Republicans have already signaled their intention to block candidates if they’re left out of the process, including Sen. John Cornyn (R-Texas), whose membership on the Senate Judiciary Committee gives him an outsized role in nominations.
The firings of nine U.S. attorneys during the Bush administration have heightened sensitivities as to whom and how Obama selects his legal corps. The Justice Department’s watchdogs concluded in a 2008 report that some of the firings were improperly motivated by partisan considerations. The report spurred a criminal investigation that is ongoing. “You just have to be more careful and be able to explain why you nominated somebody should they become a story,” said Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington. Her group petitioned Congress and the Justice Department for an investigation into the firings.
On May 15, Obama said he intended to nominate Preet Bharara for the Southern District of New York, Tristram Coffin for Vermont, Jenny Durkan for the Western District of Washington, Paul Fishman for New Jersey, John Kacavas for New Hampshire and Joyce Vance for the Northern District of Alabama.
MORE CANDIDATES ARRIVE
Though just six have been named so far, about 20 candidates have come to Washington for interviews at the Justice Department in the past two months, according to a source familiar with the process. The meetings are one of the final steps before nomination.
Obama is announcing his picks for U.S. attorneys in waves, replacing holdover Bush prosecutors once his nominees are confirmed or appointed on an interim basis while awaiting confirmation, Justice Department officials said.
That breaks sharply with the system adopted by President Bill Clinton, who sacked nearly all holdover U.S. attorneys at the start of his first term. The move angered many career Justice Department lawyers who say the turnover disrupted their work and left some prosecutors out on the street.
But Obama’s piecemeal approach means some of the most controversial Bush-era prosecutors, such as Mary Beth Buchanan in the Western District of Pennsylvania, will likely remain in place until their successor is confirmed. Buchanan’s critics say she brought politically motivated cases against local Democrats.
Other Republicans appointees could hold onto their posts in the new administration. Sen. Richard Durbin (D-Ill.) has asked the president to re-nominate Patrick Fitzgerald, the U.S. attorney in Chicago who prosecuted I. Lewis “Scooter” Libby Jr. and is overseeing the prosecution of former Illinois Gov. Rod Blagojevich.
Democrats have announced about 40 recommendations to the White House. A review of the six named last week and other potential picks shows that about half have donated money to Obama, the senator who recommended them to the White House, or both.
Obama appears to be adhering to the tradition of deferring to the members of his party in Congress, typically senior senators, for recommendations. In the 14 states without a Democratic senator, House members, governors and other state-level Democratic officials are generating names.
The Bush administration followed the same convention, but some Republicans are bristling at the notion of losing their voice in the nomination process.
In meetings with White House Counsel Gregory Craig, Sens. Cornyn and Kay Bailey Hutchison, also of Texas, have pressed for Obama to recognize a nominating commission they assembled during the Bush administration to screen candidates for federal district judgeships, U.S. attorney, U.S. marshal and other federal posts. The White House said it would only consider nominees recommended by Texas Democrats. Cornyn responded by reminding Craig of his power to block home state nominees using blue slips, a tool regarded as a senatorial courtesy.
“The day that we elect a Democrat to the United States Senate in Texas, they are entitled to function as they would with a Democratic president,” Cornyn said in a March interview with The Dallas Morning News. “I’m not going to delegate my responsibility to anybody else.”
In an interview with The National Law Journal last week, Hutchison said she hopes to reach agreement on appointments without having to resort to procedural tactics that would slow nominations. “I think we’re just taking this one day at a time. There’s no sense in arguing about process until we see what the process becomes,” Hutchison said.
REPUBLICANS WANT CONSULTATIONS
Sen. Orrin Hatch (R-Utah), a former chairman of the Senate Judiciary Committee, said that the selection process for U.S. attorneys has the potential to break down if Republicans see it as unfair or if they become alarmed about specific nominees. “I just hope they don’t put a lot of political people in there,” he said.
U.S. attorneys are expected to enforce the law without regard for politics, but landing the position has traditionally required strong political connections. Nearly half of those under consideration by the White House have donated to Democrats, according to the Center for Responsive Politics, a Washington organization that tracks federal elections.
All six of those named last week have given campaign contributions to Obama or other Democrats.
Fishman, a partner at Friedman Kaplan Seiler & Adelman in Newark, N.J., last fall gave $1,000 to the campaign of Sen. Frank Lautenberg (D-N.J.). Lautenberg recommended Fishman for the post. Durkan, a solo practitioner in Seattle, gave $2,300 to Obama last year and $3,300 in recent years to Sen. Patty Murray, the Washington Senator who recommended her.
Kacavas, a name partner at Kacavas Ramsdell & Howard in Manchester, N.H., and a former state prosecutor, contributed $1,000 to the campaign of Sen. Jeanne Shaheen (D-N.H.) in 2008 and $1,000 to then-Sen. Hillary Clinton (D-N.Y.) in 2007. Vance, currently chief of the appellate division in the U.S. attorney’s office for the Northern District of Alabama, donated $1,000 to Obama’s presidential campaign.
Last fall, Obama’s campaign received $1,000 from Bharara, Sen. Charles Schumer’s chief counsel, and $250 from Coffin, a director at Paul Frank + Collins in Burlington, Vt.
Other lawyers recommended by their home state senators, but yet to be nominated have also contributed large sums to Democrats.
Loretta Lynch, a partner in the New York office of Hogan & Hartson who was recommended for the Eastern District of New York, gave $4,600 to Obama’s campaign last year. In Ohio, Steven Dettelbach, a partner in the Washington office of Baker Hostetler, gave $3,000 to the campaign of Sen. Sherrod Brown (D), who recommended him for the state’s Northern District post. Dettelbach has also given $3,600 to Obama. John Walsh, a partner at Hill & Robbins in Denver, gave $4,600 to Obama last year and $2,250 in recent years to Sen. Mark Udall (D-Colo.), who recommended him for Colorado’s U.S. attorney slot.
Sen. Amy Klobuchar’s pick, B. Todd Jones, a partner at Robins, Kaplan, Miller & Ciresi in Minneapolis and former U.S. attorney during the Clinton administration, is closing in on the U.S. attorney spot in Minnesota, the sources said. Jones gave $4,350 in contributions to Obama’s campaign in 2007.
Associate Deputy Attorney General David Margolis, a career official with more than a decade of experience grilling U.S. attorney candidates, has been leading the inquiries at Main Justice. H. Marshall Jarrett, the director of the Executive Office for U.S. Attorneys (EOUSA) and his aides, as well as White House liaison Margaret Richardson, and lawyers from the Office of Legal Policy and the White House Counsel’s office have also been present, the sources say. Several other candidates are in the initial vetting phase, which is being handled by the OLP and the Office of the Associate Attorney General. The Justice Department declined to comment on how many candidates have been interviewed.
Fulbright & Jaworski partner Michael Battle, former director of EOUSA during the Bush administration, said the speed of the process depends on the layers of local-level vetting, as well as the mechanism for identifying potential candidates, which varies by state. “It takes the better part of six, eight, 10 months, as the White House gets more comfortable with doing this,” said Battle. “It just takes time.”