Bloomberg Law
Jan. 27, 2023, 3:55 PMUpdated: Jan. 27, 2023, 5:42 PM

GOP Senators Threaten US Attorney Delays After Biden U-Turn (1)

Ben Penn
Ben Penn

The White House’s apparent about-face on a US attorney pick for Tennessee who drew at least two Democratic objections is inviting GOP obstruction threats over traditionally nonpartisan chief prosecutor appointments.

The unusual scenario played out Thursday at a Senate Judiciary Committee meeting. Sen. Marsha Blackburn (R-Tenn.) warned she will stall objectionable US attorney and marshal nominees after the Biden administration didn’t renominate its 2022 selection for top prosecutor in the Eastern District of Tennessee.

Blackburn blamed an unnamed fellow member of the judiciary panel for blocking the nominee she’d recommended, Casey Arrowood, an assistant US attorney. Committee Chair Dick Durbin (D-Ill.) acknowledged more than one Democrat opposed the selection.

Sen. Mazie Hirono (D-Hawaii) was one of the opponents, a Hirono spokeswoman said.

Sen. Lindsey Graham (S.C.), the top Republican on the panel, backed Blackburn. “If we’re going to allow some people outside our states to have vetoes of the basic nominating process, then be careful what you wish for,” Graham said in a warning to Democrats.

Arrowood’s nomination expired when he wasn’t confirmed before the end of the last Congress. He never received a vote amid resistance from Asian-American advocacy groups—one of which credited Hirono for championing their cause.

The objections stem from Arrowood’s prosecution of a University of Tennessee professor—who was acquitted by a judge in 2021—in the first trial under the Trump administration’s now-disbanded initiative to root out suspected Chinese espionage in academia. Asian-rights groups have accused Arrowood of racially-profiling and wrongfully charging Anming Hu, a nanotechnology expert. He was charged with wire fraud and making false statements.

Chinese for Affirmative Action applauded Hirono in a Dec. 19 statement for preventing Arrowood’s nomination from moving forward.

“We strongly believe that Casey T. Arrowood should be held accountable and not rewarded for his role in the racial profiling and the wrongful prosecution of Professor Hu who experienced irreparable harm and continues to be traumatized by Arrowood’s actions,” CAA said.

A DOJ spokeswoman declined to comment on the nomination, deferring to the White House. The White House didn’t respond to multiple requests for comment.

If Biden goes in a new direction, as Blackburn suggested he will, the administration faces a potential dilemma as it seeks to fill some 30 remaining vacancies for US attorneys out of the 93 positions nationwide. US attorneys, serving as the top law enforcement officials in their districts, are seen as critical to fulfilling Justice Department priorities such as combating violent crime.

“If I was at DOJ selecting US attorneys and I was at the White House pushing forward these nominees, I’d be concerned if there were senators out there thinking that the accommodation process was broken down,” said Samuel Ramer, a white-collar partner at Norton Rose Fulbright who’s previously worked on advancing chief prosecutor nominees as a senior DOJ official and a Judiciary Committee counsel.

Vacancies, Delays

The White House typically coordinates with home-state senators, including from an opposing party, to find common ground on a US attorney choice all sides deem qualified. With rare exceptions, the nominees are then accorded an expedited, bipartisan Senate confirmation process.

But with dozens of US attorney positions still unfilled, including a pivotal opening coming up in Chicago, Blackburn said she’d be exercising her authority to request roll call votes on any future US attorney or marshal nominees she considers more objectionable than Arrowood.

That would create a scheduling problem in the crowded Senate calendar, particularly compared with the unanimous consent process the chamber almost always uses to instantly approve a package of US attorney nominees without debate.

Although the president could still choose to renominate Arrowood for the Knoxville-based office, a Senate aide, speaking on condition of anonymity, said the White House made it clear to Blackburn earlier this week that it doesn’t plan to do so.

The same aide said that Hirono has been joined by Sen. Tammy Duckworth (D-Ill.), who is also Asian American, in opposing Arrowood. Duckworth’s office didn’t respond to a request for comment.

Ronald Weich, who led DOJ’s legislative affairs office in the Obama administration and is now dean of the University of Baltimore School of Law, said Blackburn’s position could present a new obstacle for the Biden administration as it seeks to fill more law enforcement vacancies.

“There’s not a nomination pending. So I don’t think that it sets a precedent. The White House is not obligated to nominate any particular person,” Weich said. “But it does need to be worked out.”

(Updated with response from Hirono's spokeswoman)

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