The U.S. Attorney’s Office in Indianapolis has been without a presidentially appointed U.S. attorney for more than two years—an extraordinarily long stretch for a position that usually can be filled in half that time.
Political watchers point to President Obama’s taking longer than his past two predecessors to fill the nation’s top 93 federal prosecutor appointments. But in Indianapolis, another factor is contributing to the delay.
Sources said high-profile trial lawyer Linda Pence in October withdrew her candidacy, which was fronted by Democratic Sen. Evan Bayh, several months into the routine, yet extensive, vetting process.
Now the frontrunner for the post is Joe Hogsett, another Indianapolis lawyer, according to sources including Ed Treacy, chairman of the Marion County Democratic Party.
Neither Pence nor Hogsett would discuss details of their nominations, which they refused to even acknowledge.
Pence, who practices at the local office of Cincinnati-based Taft Stettinius & Hollister LLP, is a veteran white-collar criminal litigator. Her credentials include working at the Department of Justice from 1974 to 1983.
Hogsett, a partner at Indianapolis-based Bingham McHale LLP, served as Indiana secretary of state from 1989 to 1994, and was chief of staff for then-Gov. Bayh from 1995 to 1997.
“I think either one of them would make an excellent U.S. attorney,” Treacy said. “Hopefully, they can get something done soon.”
Because Bayh is foregoing an attempt at re-election in November, Treacy and other political insiders think a new U.S. attorney in Indianapolis could be named before he leaves office. Bayh gets to submit a candidate to the president because he’s Indiana’s senior senator belonging to the party occupying the White House. Phone calls to Sen. Bayh's office in Washington, D.C., were not returned.
After Obama’s first year in office, just a third of his nominations had been confirmed by Congress, compared with more than half at roughly the same time under former presidents Bill Clinton and George W. Bush.
“One might expect things to move more quickly, but this president has been slower to nominate U.S. attorney positions,” said David Orentlicher, a former state representative and professor at the Indiana University School of Law in Indianapolis.
Both Orentlicher and Treacy attributed some of the cause for the delay to partisan politics.
“Because of the difficulty of the Republicans in the Senate holding everything up, that it would take such a long time to get done, [Pence] withdrew her name from being considered,” Treacy said.
Senate-confirmed appointments to Department of Justice offices, particularly U.S. attorneys, are political in nature. They serve under the direction of the Attorney General and conduct most of the trial work in which the United States is involved. That includes the prosecution of criminal cases brought by the federal government, and the prosecution and defense of civil suits. Yet they really don't set policy but follow the strategies deemed important by the new administration, former U.S. Attorney Susan Brooks said.
In Indianapolis, the U.S. attorney manages a staff of about 80, including roughly 30 lawyers.
Federal court in Indianapolis has been without a presidentially appointed U.S. attorney since Brooks left in October 2007, about a year before Obama was elected president. Given the short time remaining before the election, political experts said it wouldn't have made much sense for Bush to nominate a successor.
Brooks, now general counsel and vice president of work force and economic development at Ivy Tech Community College, can appreciate what Pence endured.
Background checks conducted by the Justice Department and Federal Bureau of Investigation are quite extensive and typically comb through a candidate’s past dating to his or her college years.
Criminal, political and financial histories are explored, as well as even the views expressed in written documents, said Brooks, whose nomination took 10 months to get confirmed in October 2001.
Brooks doesn’t fault former President Bush for failing to recommend a replacement for her. But the time that has elapsed without a permanent U.S. attorney is “what’s getting long now,” she said.
Such an extended period of time without a permanent replacement can create uncertainties, said John Maley, a partner at Indianapolis-based Barnes & Thornburg LLP, who has a large federal practice.
"It's not something that you would want to leave open indefinitely," he said, "just in terms of continuity and expectations and those types of things."
Moreover, having an interim U.S. attorney likely means the staff is short one lawyer, who is filling the position, Maley said.
In Indianapolis, that person would be Tim Morrison, a 20-year veteran of the Department of Justice, who has served as interim U.S. attorney twice before—in October 1993, and from February 2000 to October 2001.
Morrison, who declined to specify a political slant, said he's not interested in being nominated for the job.
"Politics has nothing to do with it," he said. "It's because I want to stay."
U.S. attorneys are prevented from working in any position in the offices after they have finished serving.
Morrison, like many of the lawyers on staff, boasts several years of federal legal experience. Newly appointed U.S. attorneys typically are prohibited from replacing staff, making turnover rare despite the enticements of a more lucrative private practice.
“They stay there because they love the work,” Brooks said. “I think they love the fact that their client is the United States of America.”