Federal Judges To Appoint U.S. Attorneys?
wraftery at ncsc.dni.us
Tue Mar 20 15:20:32 PDT 2007
The old, old rule was to place ithe appointment in the hands of the circuit Justice.
See In re Farrow (1880, CCD Ga) 4 Wood 491, 3 F 112 ("Section 793, U.S. Revised Statutes. That section provides: "In case of a vacancy in the office of district attorney, or marshal, within any circuit, the circuit justice of such circuit may fill the same, and the person appointed by him shall serve until an appointment is made by the president, and the appointee is duly qualified, and no longer.")
William E. Raftery
Court Research Analyst
National Center for State Courts
300 Newport Avenue
Williamsburg, VA 23185
Tel: (757) 259-1811
Fax: (757) 564-2104
Email: wraftery at ncsc.dni.us
From: conlawprof-bounces at lists.ucla.edu on behalf of Theodore Ruger
Sent: Tue 3/20/2007 6:05 PM
To: Edward A Hartnett
Cc: JMHACLJ at aol.com; conlawprof at lists.ucla.edu
Subject: Re: Federal Judges To Appoint U.S. Attorneys?
A tangential point: reading the original AP quote about the proposed
bill vesting appointment in "a federal district judge" suggested a more
subtle problem to the extent the authority was vested in one judge as
opposed to a "court of law." But the AP got it wrong, the bill would
vest it in "the district court", which for this purpose would presumably
act by majority vote of the sitting district judges.
Although constitutionally permissible, there is at least some normative
objection to a group of district judges picking the attorney who will
represent the government in their courtrooms -- perhaps a better idea
would be to vest appointment in the relevant federal circuit court as is
the case with bankruptcy judges.
Edward A Hartnett wrote:
> I understand that there are plausible arguments that cross-branch
> appointments are unconstitutional and plausible arguments that a U.S.
> Attorney is not an inferior officer. (I am not persuaded by those
> arguments, partcularly given the longstanding practice of all three
> branches adopting the contrary, textually-supportable view, but understand
> that someone who accepted those arguments would support the statutory
> change that eliminated the judicial appointment.)
> But "leap-frogging that is not supported by the claimed authorities"?
> Here are quotations from two cases I cited:
> United States v. Hilario, 218 F.3d 19 (1st Cir. 2000):
> "Confining our analysis-as we must-to the justiciable issues raised by the
> parties, we conclude for the reasons elucidated here that Gil's appointment
> and continued service as interim United States Attorney for the District of
> Puerto Rico comply with 28 U.S.C. § 546(d), the Appointments Clause, and
> the doctrine of separated powers. Consequently, the indictment against
> Hilario was duly authorized."
> United States v. Gantt, 194 F.3d 987 (9th Cir. 1999):
> "The few other authorities that have considered the matter have also
> concluded that United States Attorneys are inferior officers. See United
> States v. Solomon, 216 F.Supp. 835, 838-43 (S.D.N.Y.1963) (in dicta,
> approving constitutionality of predecessor of § 546(d) by presuming United
> States Attorneys are inferior officers), cited with approval by Morrison v.
> Olson, 487 U.S. 654, 676-77, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988); 2 Op.
> Off. Legal Counsel 58 (Feb. 28, 1978) (because United States Attorneys are
> inferior officers, vesting appointment and removal power in Attorney
> General would be constitutional).
> "Gantt argues that even if United States Attorneys are "inferior" officers,
> § 546(d) must be struck down because there is an "incongruity" in the
> appointment of a United States Attorney by the judges before whom she will
> appear. Cf. Morrison, 487 U.S. at 675-77, 108 S.Ct. 2597. This argument is
> without merit. Morrison itself cites § 546(d) and Solomon in support of the
> proposition that judicial appointment of prosecutors does not necessarily
> create an incongruity. Id.
> "Moreover, in passing on § 546(d) we consider the purpose of the
> Appointments Clause as enunciated by a unanimous Supreme Court in Edmonds
> -to "prevent congressional encroachment upon the executive and judicial
> branches." Edmonds, 520 U.S. at 659, 117 S.Ct. at 1579. The provisions of §
> 546(d) do not conflict with this purpose. The judicial branch is not
> required to appoint a United States Attorney; it is simply empowered to do
> so. More importantly, the President retains the power to replace the
> court-appointed United States Attorney with an Attorney appointed by the
> President and confirmed by the Senate."
> Edward A. Hartnett
> Richard J. Hughes Professor
> for Constitutional and Public Law and Service
> Seton Hall University School of Law
> One Newark Center
> Newark, NJ 07102-5210
> hartneed at shu.edu
> SSRN author page: http://ssrn.com/author=253335
> JMHACLJ at aol.com
> Sent by:
> conlawprof-bounce To
> s at lists.ucla.edu marty.lederman at comcast.net,
> conlawprof at lists.ucla.edu
> 03/20/2007 05:15
> PM Subject
> Re: Federal Judges To Appoint U.S.
> In a message dated 3/20/2007 4:57:47 P.M. Eastern Daylight Time,
> marty.lederman at comcast.net writes:
> And that question has been long-settled, too. See, e.g., Myers, 272 U.S.
> at 159; 3 Op. OLC at 449; 2 Op. OLC 58. Which is why, as Sam and Ed
> Hartnett have pointed out, judicial appointment of such officers is
> nothing new.
> Well, in fact, Myers is a postmaster dismissal case. And the dispositive
> case upon which it relies is Patrick Henry's "Parsons Case" a case that
> long predates the Constitution and its Appointments Clause and likewise
> long predates the Judiciary Acts that created the offices of United States
> Attorneys. Now, the result might still be the same. But I'm still
> perplexed by the leap-frogging that is not supported by the claimed
> Jim Henderson
> Senior Counsel
> Adjunct Professor
> Regent University School of Law
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