Saturday, March 3, 2007


Federal judges and prosecutors are concededly political appointments. In concept, judges were to be appointed based upon their competence, experience, integrity and fairness. Unfortunately, judicial philosophy has become the overwhelming criteria. The current administration decries "activist" judges, and then seeks to appoint those who will carry out its conservative agenda. (If that is not activism, I don't know what is.) However, those judges who disappoint by not fulfilling the expectations of their nominators cannot be terminated. President Eisenhower would have loved to discharge Justice Brennan for his liberal decisions, but thanks to life tenure and its guaranty of judicial independence, he could not-----all to the benefit of this country and its citizens.

But not so for federal prosecutors. During my judicial career, I have had the opportunity to see hard-working U.S. Attorneys and their assistants perform their duties in a dedicated and impartial fashion. That seems to be the general consensus regarding those appointees who are now to be replaced by the administration. As abhorrent as I find the practice, I am opposed to requiring the prosecutors to testify before Congressional committees. They should not be put in the awkward position of defending their choices as to past prosecutions and will be prohibited from speaking of pending ones. Few even seem to know why they are being replaced. According to the press, the main complaint does not involve competence, but rather the exercise of their discretion in whom to prosecute or not prosecute. Apparently, they are being removed either for their failure to do the bidding of the administration in prosecuting some or in choosing to prosecute others whom the administration preferred they did not; or merely to replace them as a patronage reward.

Although I am in favor of the Justice Department being called upon to explain and justify these dismissals, I fear that those hearings, as well, will be demeaning to the discharged U.S. Attorneys. The government will parade out a litany of faults and failures to justify and excuse its decision to discharge them. When the hearings are over, we will know what we know today:
The decision to discharge and replace these dedicated public servants was based upon political not personnel considerations.

1 comment:

H. Lee Sarokin said...

I was wrong about not compelling the discharged U.S. Attorneys to testify, even though my ultimate conclusion has proven to be correct. It is important that the public learn how attempts were made to influence the discharged U.S. Attorneys. I did not want them to have to defend their records, but I would want them to defend their Office and reveal the inappropriate pressures exerted upon them.