Judges appointing prosecutors

The N.Y. Times today endorses a bill (which I can’t seem to find) “to change the method for selecting interim United States attorneys back to what it once was: the federal district court in the jurisdiction would make the appointment.”

This strikes me as a bad idea (though I do not know of the history). The old joke is that a judge is a friend of a senator; the new joke would be that a U.S. attorney is a friend of a judge. We shouldn’t be encouraging prosecutors (or potential prosecutors) to make nice to judges in the hope of landing the big job.

That doesn’t mean that I’m a fan of presidential selection either. Perhaps occasionally a case is wrongly politicized, and it seems plausible that the interim U.S. attorneys selected are not always the best possible. But this proposal does not seem to succeed in its ambition of finding a truly neutral party to make the appointment.

At the very least, a reasonable modification would be to have such appointments made by a court consisting of district judges from around the country, with the expectation that judges would recuse themselves from decisions involving appointments in their own districts. (I make no claims here about the constitutionality under the Appointments Clause of the current or my modified proposal.)

You may also like...

4 Responses

  1. anonymous says:

    It looks like the bill is S. 214, but Thomas doesn’t have the text yet.

  2. Can you spell out a little more why you think it’s bad for prosecutors to “make nice to judges?” It seems plausible that there’d be some undermining of someone’s professional obligations, but I’m not coming up with the specifics.

  3. Michael Abramowicz says:


    An extreme example would be in cases in which a disciplinary complaint against a judge might be appropriate. Lawyers may already be too cowed in this area.

    More important, of course, are day-to-day interactions. Sometimes, lawyers probably should be annoying judges — for example, by making sure that objections are preserved, and, most importantly, by arguing vigorously on appeal when judges make mistakes. This is especially complicated with federal prosecutors — who generally must obtain Justice Department permission to file appeals (e.g., of sentencing decisions) and probably have more discretion to let judicial errors slide (even when jeopardy hasn’t attached).

  4. lew dematthews says:

    If a judge just now recuses himself/herself after overseeing the case for a year can I get a full explanation?

    Thank you,

    Lew DeMatthews briellelewisdoggidog@msn.com