Senate Bypassed on Many Key Justice Jobs The Bush administration has taken full advantage of a Patriot Act provision that permitted Justice Department appointments with no Senate confirmation. Of federal prosecutors now on the job, 21 of 93 were not confirmed by the Senate.
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Senate Bypassed on Many Key Justice Jobs

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Senate Bypassed on Many Key Justice Jobs

Senate Bypassed on Many Key Justice Jobs

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This is MORNING EDITION from NPR News. I'm Renee Montagne. Good morning.


I'm Steve Inskeep.

Today the Senate examines the limits of presidential authority. A former Justice Department official will testify about the firings of eight U.S. attorneys.

MONTAGNE: Those firings led lawmakers to question a power they gave to the president. Congress said after 9-11 that if a prosecutor's job was vacant, the president could appoint an interim replacement without Senate confirmation. Both houses of Congress have now voted to roll back that law, but not before the administration invoked it repeatedly, as NPR's David Welna reports.

DAVID WELNA: Every one of the 93 U.S. attorneys districts is headed by a federal prosecutor. But 21 of those prosecutors are either interim or acting - they've never had the traditional confirmation of the Senate.

Senator PATRICK LEAHY (Democrat, Vermont): I've never seen a time in my 32 years here they had that many.

WELNA: Democrat Patrick Leahy chairs the Senate Judiciary Committee. That's where the White House sends nominations for U.S. attorneys. But Leahy's received no nominations for 18 vacant U.S. attorneys posts, including the eight left open by last year's firings. 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.

Sen. LEAHY: It's obvious they wanted to use this Republican-written back door way in the Patriot Act, and I think the reason so many Republicans voted against it - they were embarrassed that they did.

WELNA: Arizona Republican Jon Kyl says he had no idea so many U.S. attorneys are officially temporary and serving without Senate confirmation.

Senator JON KYL (Republican, Arizona): It's not good to have vacancies. We need to have confirmations, and I don't know why the number is the way it is.

WELNA: The White House, for its part, did not respond to repeated requests for comment. Arlen Specter is the judiciary panel's top Republican. He says the problem goes beyond U.S. attorneys. There have also been no White House nominations for dozens of federal judgeships, including 10 circuit court vacancies.

Senator ARLEN SPECTER (Republican, Pennsylvania): 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.

WELNA: Duke University law professor Michael Gerhardt says traditionally the White House has nominated U.S. attorneys who are suggested by senators from the states where they'd serve. But under this Bush administration, he says, that patronage system has run into resistance.

Professor MICHAEL GERHARDT (Law, Duke University): Senators have been proposing people to the White House, but those people have been rejected. That can't make those senators feel very good, and it probably creates some friction between those senators and the White House.

WELNA: Just ask Alaska Republican Senator Lisa Murkowski, who suggested names to the White House last year for her state's vacant federal prosecutor's post.

Senator LISA MURKOWSKI (Republican, Alaska): I am concerned that the selections, if you will, that were advanced by Senators Stevens and myself to fill the Alaska U.S. attorney's office have not yet been acted upon.

WELNA: Murkowski says she and fellow Alaska Republican Ted Stevens were essentially ignored.

Sen. MURKOWSKI: Both names that we had submitted were turned down by the White House for unknown reasons - to this day, unknown reasons. And then without any word to either Senator Stevens or myself, Mr. Nelson Cohen from the state of Pennsylvania was announced to be our interim U.S. attorney.

WELNA: There is also anger among lawmakers from Illinois, where Republican and former House speaker Denny Hastert has offered a series of names for federal prosecutors' posts. 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.

Senator DICK DURBIN (Democrat, Illinois): The Southern District of Illinois has had seven U.S. attorneys in five years. 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.

WELNA: But the number of unconfirmed U.S. attorneys could dwindle once the repeal of the Patriot Act provision becomes law as expected. Ranking judiciary panel member Specter predicts the Senate will soon have more say over U.S. attorneys.

Sen. SPECTER: 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.

WELNA: 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.

David Welna, NPR News, the Capitol.

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