The Bush administration has taken full advantage of a Patriot Act provision that permits interim appointments of United States attorneys without Senate confirmation. Of federal prosecutors now on the job, 21 of 93 did not face Senate confirmation.
Both houses of Congress have voted to strip the Patriot Act of the provision that allows the administration to bypass the Senate when appointing U.S. attorneys.
Sen. Patrick Leahy (D-VT) chairs the Senate Judiciary Committee, where the White House would normally send nominations for filling empty U.S. attorney slots. But Leahy has received no nominations for the 18 U.S. attorney posts currently open, including the eight cleared by last year's firings.
Sen. Leahy thinks that's mainly because Attorney General Gonzales was using the provision stuck into the Patriot Act to avoid Senate scrutiny of his appointees.
"It's obvious they wanted to use this Republican-written backdoor way in the Patriot Act [to bypass the Senate]," Sen. Leahy said.
Arizona Republican Sen. Jon Kyl says he had no idea so many U.S. attorneys are officially temporary and serving without Senate confirmation.
"It's not good to have vacancies," Sen. Kyl said. "You need to have confirmations. And I don't know why the number is the way it is."
The White House, for its part, did not respond to repeated requests for comment.
Sen. Arlen Specter of Pennsylvania is the Judiciary panel's top Republican. He says the problem goes beyond U.S. attorneys. There have also been no Bush administration nominations for dozens of federal judgeships, including 10 circuit court vacancies.
"The White House has been, I think, so busy with so many other matters, the terrorist surveillance program, the habeas corpus litigation, the U.S. attorneys controversy, that there have been quite a number of matters which have not moved through the White House counsel's office as promptly as they should," Specter said.
Duke University law professor Michael Gerhardt says the White House has traditionally nominated U.S. attorneys who were suggested by senators from the states where they'd serve. But under the Bush administration, he says, that patronage system has run into resistance.
"Senators have been proposing people to the White House, but those people have been rejected," Gerhardt said. "That can't make those senators feel very good. And it probably creates some friction between those senators and the White House."
Alaska Republican Sen. Lisa Murkowski, who suggested names to the White House last year for her state's vacant federal prosecutor post, has questions about the process.
"I am concerned that the selections ... [that] were advanced by Sen. Stevens (R-AK)and myself to fill the Alaska U.S. attorneys office have not yet been acted upon," Murkowski said.
Sen. Murkowski says she and Sen. Stevens were essentially ignored.
"Both names that we had submitted were turned down by the White House for unknown reasons," Sen. Murkowski said. "And then, without any word to either Sen. Stevens or myself, Mr. Nelson Cohen from the state of Pennsylvania was announced to be our interim U.S. attorney."
Confirmations on the Horizon?
There's also anger among lawmakers from Illinois where Republican Rep. Denny Hastert, the former House speaker, has offered a series of names for federal prosecutors' posts. Sen. Dick Durbin, the Senate's number-two Democrat, says the White House has simply ignored the names he and Hastert agreed on. And it's led to a situation Durbin calls "awful."
"The southern district of Illinois has had seven U.S. attorneys in five years!" Durbin said. "It's been a revolving door. Nobody will stay. And I really think the Department of Justice and the White House have to be held accountable on this."
But the number of unconfirmed U.S. attorneys could dwindle once, as expected, the repeal of the Patriot Act provision becomes law. Ranking Judiciary panel member Sen. Specter predicts the Senate will soon have more say over U.S. attorneys.
"The appointments which have been made under the Patriot Act are interim appointments. So, before they will be permanent, they will have to be confirmed by the Senate," Sen. Specter said.
It's not clear how much friction over U.S. attorney appointments has affected the fight over the federal prosecutors' firings. But it certainly has not helped an embattled White House on Capitol Hill.