By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.
The Senate has confirmed 65 of Trump’s nominees for United States attorneys– the principal federal law enforcement officers in their districts– eight more than had been confirmed at at a similar stage in his predecessor’s tenure, according to this recent WSJ piece, New Slate of U.S. Attorneys Aids Sessions’ Law-and-Order Push.
Trump to be sure, enjoys a Republican Senate majority– which facilitates confirmation of executive appointments and judgeships– but I should note that Democrats had an even larger Senate majority at a similar stage in his predecessor’s first term.
The WSJ notes there are 93 US attorney positions in 94 judicial districts nationwide, and some positions are currently being filled on a temporary basis (and thus do not require Senate confirmation).
As the WSJ discusses, filling US attorney positions allows Attorney General Jeff Sessions– himself a former US attorney:
[to] implement his law-and-order platform, a tougher approach that’s been praised by supporters as long overdue and decried by critics as turning back the clock on civil rights.
Many conservatives say the Obama administration’s approach to sentencing, for example, was too easy on criminals. Liberals say Mr. Sessions is less willing to take on civil rights violations by police departments, showing he doesn’t take issues like police brutality seriously enough.
The Journal suggests that the previous experience of both Sessions and his deputy, Ron Rosenstein, as US attorneys has in part fostered a policy of empowering those now holding such positions:
“Having served in that role themselves, the attorney general and deputy attorney general know how critical United States attorneys are to battling violent crime, combating the opioid epidemic, and making their communities a safer place,” [Justice Department Spokesman] Prior said.
I’ve argued elsewhere opponents of the current administration’s policy priorities shouldn’t condemn the chaos that has surrounded many aspects of its governance– including the inability to fill positions that has plagued some other agencies. Those who disagree with Trump’s priorities should welcome chaos, as it makes it more difficult to implement the administration’s agenda (see my further discussion at Business Chafes at Uncertainty Created by Unfilled Seats on Regulatory Commissions and Pruitt Resigns as EPA Chief: So What?).
But at the Department of Justice (DoJ), we’re not seeing the same degree of administrative chaos. That’s not to say that the tenure of Sessions has been a bed of roses– but that is in part due to Trump’s shall we say, somewhat unusual, hand’s on managerial style.
Or as the WSJ puts it:
Mr. Sessions’ tenure has been rocky in many ways, as he has had to confront the unusual challenge of sometimes-forceful criticism from the president who appointed him. But critics and supporters say he has often been successful in reversing the priorities of the Obama Justice Department.
David Rivkin, a constitutional lawyer and contributor to the conservative Federalist Society, noted that Mr. Sessions’ agenda rededicates resources to immigration enforcement and prosecuting violent crime, among other things. “There’s certainly a feeling that the previous administration was not sufficiently tough on immigration issues,” said Mr. Rivkin.
By the way, don’t shoot the messenger here. I myself by no means endorse these priorities– nor am I a fan or apologist for the Federalist Society.
Importance of Filling Judgeships
The US attorney issue has not been widely discussed. On the law beat, what is far better known is the administration’s success in firmly and methodically filling federal judgeships, from the US Supreme Court down to federal courts, and which was evident even before Trump’s nomination of Brett Kavanaugh to replace retiring Supreme Court Justice Anthony Kennedy (as I discussed most recently in Trump After 500 Days: More Lifetime Federal Judges and before that in Trump Sets Records for Seating Federal Judges).
Although this is mere speculation on my part, I think that here we see the unheralded influence of Trump’s sister, Maryanne Trump Barry, a Clinton appointee to the United States Court of Appeals for the Third Circuit (currently inactive ).
If confirmed, Kavanaugh will join a court made up entirely of justices who attended the law schools of either Harvard or Yale, and who lack diversity in their legal experience (see these previous posts of mine, Barriers to Entry: On Bar Exams and Supreme Court Seats and Doing Time: Prison, Law Schools, and the Membership of the US Supreme Court).
One might expect the Democrats to look beyond candidates that John C. Harris and Martha Nussbaum described in Politico last week make for “a court of careerists”, but like so many other problems affecting American politics, putting forward judicial candidates who lack any diversity of experience is also a bipartisan failing (and some may even say is not a bug, but a feature).
Permit me to quote from that Doing Time post– which was one of the first things I wrote for this site and which many readers might not have seen– as I believe it suggests why this matters:
About a dozen years ago I was sitting in an auditorium in Cape Town listening to a panel discuss constitutional law issues in the new South Africa. One of the panellists, judge Dikgang Moseneke, was particularly impressive and I recall his somewhat unusual background– certainly unusual compared to that of any current justice of the US Supreme Court.
Moseneke joined the Pan-Africanist Congress when he was 14. One year later, he was arrested and subsequently convicted of participating in anti-apartheid activity. He served ten years as a prisoner on Robben Island. While in prison he completed various university degrees and would later earn a law degree. He subsequently pursued a glittering career as a practicing attorney, until his appointment to South Africa’s Constitutional Court– the highest in the land. He served there until his retirement in 2016.
Now I’ve not studied Moseneke’s judicial record in any detail. All I know is his wikipedia entry praises him for his “towering legal mind” and calls him “a most independent-minded and imaginative jurist”. But I remember thinking at the time that serving time as a prisoner would give him a breadth of experience to draw on as a judge that would certainly be impossible in an American context. Our system of judicial selection is well-designed to shut out anyone who has any experience being on the wrong side of the law. Or, for that matter, especially in recent years, with doing anything remotely controversial.
Staffing the DoJ
The main goal of this post, however, isn’t to discuss the Kavanaugh nomination or the selection of judges per se, but instead to emphasize how filling those US attorney positions allows the DoJ to pursue policy priorities. The importance of confirming like-minded judges lies in making it more likely that administration legal stances will get a more sympathetic hearing when in court.
Sessions was taken to task when in March 2017, he asked 46 US attorneys to resign. As I wrote at that time in Trump Fires Preet Bharara and 45 Other US Attorneys, Media Hysteria Ensues:
Attorney General Jeff Sessions asked 46 US Attorneys (USAs) to resign on Friday– including Preet Bharara, US attorney for the Southern District of New York, whom Trump had asked in a previous November 2016 meeting to stay on in his post. Bharara failed to comply with the resignation request, and Sessions fired him on Saturday, as the New York Times reported in U.S. Attorney Preet Bharara Resigns After Refusing to Quit.
To those readers coming late to this party, this ain’t no Saturday Night Massacre, folks. USAs are political appointees, appointed to serve four year terms, yet as is the case with other political appointees, they serve at the pleasure of the President. This means they can be dismissed at any time, without cause.
In days gone by, it was customary for USAs to serve out their four year terms when a new President took office (although in the first two years of the Reagan administration, a majority of the USAs were replaced). That’s no longer the case. In fact, in March 1993, Attorney General Janet Reno took a similar action, asking 93 holdover USAs to resign.
Asking them to resign would have little impact, however, without following up by appointing and confirming the administration’s own US attorney candidates. And here, as in the judgeship area, Republicans have kept their eyes on the prize and worked to fill these key positions– doing so more methodically and effectively than a Democratic president with a greater Senate majority achieved at a similar point in his tenure.