Statement Of Sen. Patrick Leahy
On U.S. Attorney Nominations
Senate Judiciary Committee
Executive Business Meeting
September 27, 2007

Today, the Committee considers the nomination of James Russell Dedrick to be United States Attorney for the Eastern District of Tennessee.  I thank the Senators from Tennessee for their work in connection with this nomination. 

In the course of the Committee’s investigation into the unprecedented mass firings of U.S. Attorneys by the President who appointed them, we uncovered an effort by officials at the White House and the Justice Department to exploit an obscure provision enacted during to the Patriot Act reauthorization to do an end-run around the Senate’s constitutional authority to confirm U.S. Attorneys.   The result was the firing of well-performing U.S. Attorneys for not bending to the political will of political operatives at the White House.    

I had hoped when the Senate voted overwhelmingly to close this loophole, passing S.214, the “Preserving United States Attorney Independence Act of 2007,” by a vote of 97-0, it would send a clear message to the Administration to nominate Senate-confirmable U.S. Attorneys and begin to restore an important check on the partisan influence in law enforcement. 

Regrettably, the Administration seems to have chosen to ignore that message.  It has made an abysmal effort to send nominees to the Senate to replace the fired U.S. Attorneys and to fill vacancies in those districts and many others.  There are now 23 districts with acting or interim U.S. Attorneys instead of Senate-confirmed U.S. Attorneys.  That is over a quarter of all districts.  Yet the White House has nominated only five people for these 23 spots.  

When it comes to the United States Department of Justice and to the U.S. Attorneys in our home states, Senators have a say and a stake in ensuring fairness and independence in order to insulate the federal law enforcement function from untoward political influence.  That is why the law and the practice has always been that these appointments require Senate confirmation.  The advice and consent check on the appointment power for U.S. Attorneys is a critical function of the Senate.   

Even as we closed one loophole, the Administration has been exploiting others to continue to avoid coming to the Senate.  Under the guidance of an erroneous opinion of the Justice Department’s Office of Legal Counsel, the Administration has been employing the Vacancies Act authority to use acting U.S. Attorneys and the power to appoint interim U.S. Attorneys sequentially.  They have used this misguided approach to put somebody in place for 330 days without the advice and consent of the Senate.  This approach runs afoul of congressional intent and the law. 

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