Interim Heads Increasingly Run Federal Agencies

By Philip Shenon
The New York Times

Monday 15 October 2007

Washington - For now, the most powerful law-enforcement official in the federal government is a 47-year-old lawyer little known outside Washington.

Or inside Washington, for that matter.

He is acting Attorney General Peter D. Keisler, who is running the Justice Department until a new attorney general is confirmed by the Senate to replace Alberto R. Gonzales. Mr. Keisler had been in charge of the department's civil division.

The No. 2 and No. 3 officials are also acting - acting Deputy Attorney General Craig S. Morford and acting Associate Attorney General Gregory G. Katsas. More than a quarter of the department's 93 United States attorneys around the country are "acting."

At the top of the Department of Homeland Security, there is an acting general counsel, acting under secretary for national protection and acting assistant secretary for strategic plans. At the Department of Health and Human Services, the $600 billion-a-year Medicare and Medicaid programs have had an acting administrator since last fall.

Scholars and other researchers who study the federal bureaucracy say that the situation in those agencies is becoming increasingly common elsewhere in the Bush administration.

With only 15 months left in office, President Bush has left whole agencies of the executive branch to be run largely by acting or interim appointees - jobs that would normally be filled by people whose nominations would have been reviewed and confirmed by the Senate.

In many cases, there is no obvious sign of movement at the White House to find permanent nominees, suggesting that many important jobs will not be filled by Senate-confirmed officials for the remainder of the Bush administration.

The White House insists that when vacancies have occurred in executive branch agencies, it has filled them with talented acting replacements, often with the same officials who have been nominated - but not yet confirmed - for those jobs by the Democratic-controlled Senate.

"We have capable people in place to provide leadership," said Emily Lawrimore, a White House spokeswoman. "We encourage members of the Senate to confirm the nominees we've already sent to the Hill as soon as possible."

Under a 1998 law known as the Vacancies Reform Act, acting government officials can remain in their posts for 210 days with the full legal authority they would otherwise have with Senate confirmation, with the calendar reset to 210 days once a nominee's name has been forwarded to the Senate. As of Monday, there are 462 days left in Mr. Bush's term.

The president also has authority under the Constitution to make so-called recess appointments to senior jobs when the Senate is out of session - authority that President Bush has invoked far more often than his immediate predecessor, Bill Clinton.

But recess appointments often subject the White House to criticism that it is trying to circumvent the Senate confirmation process. And because there is relatively little time left in the Bush administration, there may be less pressure, or need, to consider them. The indefinite appointment of acting officials might have the same effect of circumventing Congressional oversight of nominations for what remains of the Bush presidency.

While exact comparisons are difficult to come by, researchers say that the vacancy rate for senior jobs in the executive branch is far higher at the end of the Bush administration than it was at the same point in the terms of Mr. Bush's recent predecessors in the White House.

"You've got more vacancies now than a hotel in hurricane season," said Paul C. Light, a professor of public service at New York University and one of the nation's best-known specialists on the federal bureaucracy. "In my 25 years of studying these issues, I've never seen a vacancy rate like this."

Michael J. Gerhardt, a law professor at the University of North Carolina who studies the federal appointment process, said that he believed the large number of vacancies reflected a widespread fear by Republicans that the next president, whoever it is, will be a Democrat, and that there is no job security at the top ranks of the executive branch.

"Republicans don't have as much incentive to give up lucrative jobs in the private sector right now," Mr. Gerhardt said.

Senator Arlen Specter, the ranking Republican on the Judiciary Committee, said, "In the long history of the country, I don't think the Justice Department has been in such disarray."

"You have top spots unconfirmed: unconfirmed attorney general, unconfirmed deputy, unconfirmed associate," he said. "You took a look at the organizational chart, there are many others who are unconfirmed among the assistant attorneys general ranks."

The vacancies include three members of the cabinet. There are currently three acting cabinet members, including Mr. Keisler. The Senate Judiciary Committee is now weighing Mr. Bush's nomination of Michael B. Mukasey, a retired federal judge, to replace Mr. Gonzales as attorney general, and has scheduled a confirmation hearing for later this month.

But the White House has so far failed to provide the Senate with the names of nominees for the other two cabinet jobs, agriculture secretary and veterans affairs secretary, which are now being filled by officials placed there temporarily by Mr. Bush.

In the case of the Veterans Affairs Department, the White House has known of the vacancy for months. The department's last secretary, Jim Nicholson, announced in July that he would be stepping down.

The Office of Personnel Management, the government agency that oversees hiring and firing of federal employees, says it does not maintain records that would allow comparisons between the vacancy rates for senior government jobs under Mr. Bush and under his predecessors at this late point in their terms.

Under federal disclosure laws, executive branch agencies are supposed to report vacancies among top jobs to the General Accountability Office, the investigative agency that is part of Congress. But a spokesman there said its database was not necessarily up to date and also did not offer comparisons from one administration to the next.

Professor Light said it was not surprising for the number of vacancies in senior government posts to grow as a president neared the end of a term, when political appointees seek work outside government and it becomes more difficult to recruit candidates for what may be short-term jobs.

But he said the situation in the final months of the Bush administration was dire. Because Mr. Bush may well be replaced by a Democrat who would almost certainly want a wholesale turnover of political appointments, the vacancies are likely to continue well into 2009 at many cabinet departments and other agencies, Professor Light said.

He said the problems of having so many acting senior government officials were obvious: "One of the things we know is that they just aren't as effective as Senate-confirmed appointees. They just don't have the standing in their agencies. Acting people are very shy about making decisions."

The situation is more serious at some federal agencies than others. At some cabinet departments, including the Defense Department, virtually all senior officials have Senate confirmation.

Russ Knocke, a spokesman for the Homeland Security Department, said the department had already identified nominees for all of its senior vacancies and was hopeful that they would be filled soon by Senate-confirmed officials.

Elsewhere in the government, the vacancies are numerous, with little expectation that they will be filled soon by candidates who have been approved in the Senate.

At the State Department, the job of undersecretary for arms control and international security has been vacant for most of the past year. Mr. Bush announced the appointment of an acting undersecretary late last month.

Henrietta H. Fore, the undersecretary of state for management, has been doing double-duty since spring, also serving as acting director of USAID, the government's foreign-aid agency; the last occupant of that USAID job resigned after he was identified as a customer of a Washington prostitution ring.

No cabinet agency has been more hard-hit by vacancies in senior posts than the Justice Department.

Its ranks have been depleted in recent months, which may be a reflection in part of the scandals that engulfed the department under Mr. Gonzales, especially the furor over the firing of several United States attorneys last year for what appear to have been political reasons.

Peter Carr, a spokesman for the department, said "We are confident in the individuals who are leading their respective offices in an acting capacity - these are veteran department lawyers with significant experience."

The heads of the department's civil rights, natural resources and tax divisions are all "acting," as are the directors of the elite Office of Legal Counsel and the Office of Legal Policy.

The acting head of the counsel's office, Steven G. Bradbury, who functions as the department's lawyer, has found himself under intense scrutiny with the disclosure last week that he was the author of a pair of secret legal opinions that endorsed brutal interrogation techniques for terrorism suspects in the custody of the C.I.A.

The acting attorney general, Mr. Keisler, has relatively little experience in criminal prosecutions.

He has worked in the department's civil division since 2002 and, before that, had spent most of his career in private practice in Washington or as a law clerk. He may be best known in Washington legal circles as one of the founders of the conservative Federalist Society.

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