On March 26, 2007, the House passed H.R. 580, Interim Appointment of U.S. Attorneys. This bill is designed to help better ensure the independence of U.S. Attorneys - by repealing a provision in a 2006 statute that grants the Attorney General the authority to make indefinite interim appointments of U.S. Attorneys, who can then serve indefinitely without Senate confirmation. This bill was signed into law on June 14, 2007.
U.S. Attorneys are the chief federal law enforcement officer in their federal district - and their independence is critical. U.S. Attorneys play a key role in the nation's federal law enforcement system - exercising the enormous power wielded by the prosecutorial capacity of the federal government. They have to make prosecutorial decisions every day - when to prosecute and when not to prosecute, based on the facts of the case. Although U.S. Attorneys are appointees of the President, the culture of the Justice Department has always been that U.S. Attorneys must be fully independent - not allowing partisan politics to enter into any of their decision-making.
The bill restores the process for temporarily replacing U.S. Attorneys to what it was previously. The Attorney General would be empowered to appoint someone to serve up to 120 days. If the Senate did not confirm a permanent replacement by then, the chief judge of the federal district would be able to appoint a temporary replacement to serve until the Senate acted. The bill also includes a provision to prevent the Administration from using the Vacancies Act to allow the Attorney General to make continuous interim appointments of U.S. Attorneys.
It is key to ensure that U.S. Attorneys are subject to Senate confirmation. Under federal statute, U.S. Attorneys are appointed by the President and are confirmed by the Senate. Senate confirmation is an integral part of our checks-and-balances system. The Senate's advice and consent process formally checks the power of the President by requiring the U.S. Attorney nominee to go through a confirmation process. In addition, traditionally, the President has usually accepted U.S. Attorney nominees for a particular state who are recommended by that state's Senators from the President's political party or other officials in that state from the President's party. This tradition, called “Senatorial courtesy,” has also served as an additional, informal check on the President's appointment power.
The bill would apply to the interim U.S. attorneys who are currently serving in the place of the eight dismissed U.S. Attorneys. This bill would impact the U.S. Attorney openings that were created when the eight U.S. Attorneys were forced to resign by the Bush Administration. It would make sure that interim U.S. Attorneys presently serving do not linger in office without Senate confirmation.
A similar bill, S. 214, introduced by Sen. Dianne Feinstein (D-CA), was passed by the Senate by an overwhelming, bipartisan vote of 94 to 2 on March 20.