"Across the country, more than half of the U.S. attorney seats remain without a prosecutor chosen by Obama."
Thomas Melsheimer on Monday, June 7th, 2010 in an op-ed article
Dallas lawyers say Cornyn among Republicans keeping U.S. attorney slots from having Obama's appointees
Republican U.S. Sen. John Cornyn draws fire in a recently published opinion piece pointing out that the four chief federal prosecutor positions in Texas have yet to be filled by lawyers of Democratic President Barack Obama's choosing.
Two Democrats, Dallas lawyer Thomas Melsheimer and Craig Smith, a state district judge, said in an op-ed article in Monday's Austin American-Statesman that Cornyn's insistence on holding sway over the U.S. attorney appointments in Texas has kept them from happening. "Obama should be allowed to select a competent nominee of his choice without Cornyn's blessing on the front end," they write.
Other Senate Republicans are similarly thwarting the president, they suggest. "Across the country," they write, "more than half of the U.S. attorney seats remain without a prosecutor chosen by Obama."
We reached Melsheimer, who said he based the less-than-half claim on information provided by the interim U.S. attorney for the Northern District of Texas, James T. Jacks.
We couldn't reach Jacks, but Melissa Schwartz, spokeswoman for the U.S. Department of Justice, told us Obama appointees have been confirmed as U.S. attorneys for 51 of the nation's 93 districts. A U.S. Senate Committee on the Judiciary web page lists the U.S. attorneys nominated by Obama and confirmed by the Senate.
Fifty-one of 93 equals 55 percent, not "less than half." According to the Senate committee list, the last time that Obama appointees occupied less than half the U.S. attorney slots was early May. His 47th U.S. attorney nominee was confirmed with others May 5; three more nominees were confirmed May 25, nearly two weeks before the oped was published.
Still, we wondered if there's a legitimate beef with Cornyn, who serves on the judiciary committee, and if it matters when the leadership posts are filled by civil-service lawyers instead of presidential appointees.
Some perspective: Traditionally, the U.S. attorney posts turn over with each change in president. Though nationally, a handful of the top prosecutors appointed by President George W. Bush remain in place, the Bush appointees in Texas are gone, replaced by career Department of Justice lawyers considered temporary holders of the plum posts pending the arrival of Obama's choices.
Cornyn said Wednesday he's falsely accused of blocking nominees and that the president has been slow to put names forward. Generally, he said, "we're working in good faith together to try to fill as many of these vacancies as we can."
It's the Senate's role to confirm each president's nominees. For judicial-related appointments, Cornyn and Sen. Kay Bailey Hutchison, R-Texas, rely on their own advisory committee to guide them on who to recommend the president name to federal judgeships and U.S. attorney posts in Texas.
Last year, the committee was expanded to include Democratic-leaning lawyers. But the White House earlier said it would not choose anyone without a sign-off from the state's Democratic House members, who have elected as their chair U.S. Rep. Lloyd Doggett of Austin.
In a March 2009 statement, the White House said Cornyn and Hutchison "will be accorded a full opportunity to share their views about each candidate whom the president proposes to nominate." But the statement also said: "No federal judge, U.S. attorney or U.S. marshal will be nominated by the president, however, unless that person has the confirmed support of the Texas Democratic delegation."
Doggett said this week that a tradition hearkening to Republican Ronald Reagan's presidency grants appointment sway to House members from the president's party in states lacking members of the president's party in the Senate. The House Democrats have recommended various Texans to Obama for federal judgeships, U.S. marshal positions and each U.S. attorney slot.
With competing groups seeking to be the clearinghouse for nominees, the situation seems ripe for standoffs. One element: House Democrats favor one candidate to be U.S. attorney for the state's Dallas-based Northern District, while Cornyn and Hutchison have aligned behind another.
Meanwhile, the president's only announced choice for a U.S. attorney post in Texas, nominated in February, withdrew in April, telling a Beaumont TV station he'd decided to remain a state district judge, indicating impatience with the process. "There is no timetable for a decision on the nomination," the station quoted John Stevens, the nominee, saying. "It's just sitting there. It seems like there ought to be a quicker method."
Far as we can tell, the White House has not spoken out lately about its Texas appointments. This week, an Obama spokesman didn't immediately have a comment.
Doggett noted that besides the lack of Obama's U.S. attorney appointees in Texas, seven Texas judicial posts wait to be filled. Doggett said Cornyn has played a delaying role, though the White House shares blame. "As long as the White House doesn't put a high priority on (filling the openings), the (GOP) senators are only encouraged to be obstructive," Doggett said.
UPDATE, 2:38 p.m. June 11, 2010: After we posted this article, White House spokesman Matt Lehrich told us that Obama, in consultation with state congressional delegations, has nominated a steady stream of candidates for U.S. attorney posts "at a pace similar to that of previous administrations." He said that through June 9, Obama had nominated 72 individuals as U.S. attorneys, with 51 confirmed by the Senate and two having withdrawn. Bush had made 83 nominations by the same point in his first term, with 75 confirmed and two having withdrawn. And at the same point of his first term, President Bill Clinton had nominated 83 U.S. attorneys with 81 confirmed.
Nobody we queried had objections to staff lawyers filling in as U.S. attorneys until the political appointments are made. Does the delay make a difference?
It matters, Doggett said, because a presidential appointee can be counted on to carry out administration priorities. "If a U.S. attorney has consistently under the Bush administration ignored violations concerning polluting our waterways and oceans," Doggett said, "and somebody under the Obama administration thinks it's time to give that attention and prioritize, that's a good example of why it makes a difference."
Attorney Richard Roper, Bush's appointed U.S. attorney for the Northern District of Texas through 2008, agreed, saying political appointees -- "somebody on the president's team and the attorney general's team" help make sure "all priorities of the attorney general are being carried out."
As for the lawyers' statement, it misses the mark: Obama choices were confirmed for more than half the nation's U.S. attorney slots as of early May. Yet it's not off by much. Obama still doesn't have appointees in place in nearly half the posts.
We rate the statement Barely True.
Editor's note: This statement was rated Barely True when it was published. On July 27, 2011, we changed the name for the rating to Mostly False.