THE NEWS STORIES about the selection of Russell T. Baker Jr. to be the new United States Attorney for Maryland all said the same thing: Mr. Baker was chosen by Sen. Paul Sarbanes. Whiles we have no inclination to quarrel with that choice - Mr. Baker's credentials are impressive - we do have a substantial quarrel with how it came about.
The process through which this decision was made is described by these extracts from the story that appeared in this newspaper:
"President Carter . . . lobbied for the selection of Dwight Pettit . . .
"Sarbanes . . . would have preferred to nominate an older, more experienced attorney . . .
"Sarbanes offered the job to at least three such lawyers, all of whom turned him down . . .
"Sarbanes offered it to [Baker] . . .
"[Baker's] name will be sent to President Carter and Attorney General Griffin Bell, who will send the nomination to the full Senate for confirmation."
From that account, who, would you guess, has the legal right to nominate federal officers like United States Attorneys? Obviously, it is not the President, for he appears in these reports as a mere lobbyist and conduit through which the choice of a senator must pass. Yet the Constitution, we need hardly remind you, places the power to make nominations like this one solely in the hands of the President. It gives senators the right only to consent to or reject his choices. And while almost everybody knows that, not everybody may be quite as familiar with the way the Senate has used the device of "senatorial courtesy" to snatch this nominating authority away from all modern Presidents. The "courtesy" gambit operates by common consent and with ruthless efficiency; it is simply understood that individual senators have the right to veto any home-state nominee; as a practical matter, this reverses the nominating process, it being simpler under these circumstances to let individual senators initiate the nomination for the President's approval, rather than the other way around.
And that, of course, is what happened in the case of Mr. Baker. In this instance, however, the usurpation of presidential power is even more blatant - and distressing - than usual. And the reason for this had to do with a deal that President Carter was forced into as a consequence of his campaign promises to select United States Attorneys as well as federal judges solely on the basis of merit. When the time came to make good on these promises, Mr. Carter, predictably, bumped right into the "courtesy" rule. So a bargain was struck: In exchange for an agreement with various key senators to let the President select federal circuit judges on their merits, Attorney General Griffin Bell yielded in the matter of United States Attorneys. Those nominations were left in the hands of interested senators - and in the case of Mr. Baker, Sen. Sarbanes was interested.
In fairness, it ought to to be noted that the senator was not indifferent to merit in making this selection. Mr. Baker is a Deputy Assistant Attorney General in the Department of Justice's Criminal Division and a career prosecutor. All indications are that he will continue the pursuit of political corruption in Maryland that his immediate predecessors so wisely instituted. Indeed, there is an argument to be made that the senator's choice was less political in nature than would have been the President's.
Nevertheless, something is wrong here. Members of the executive branch who presidential appointments ought to owe their allegience to the President, who is constitutionally responsible for their selection and, in the last analysis, their conduct. That's what the principle of separation of powers is all about. And that's why the Constitution gives the power of appointment to the President, not to Congress. The Senate, down through the years, has tried to change that balance without changing the Constitution. This is usurpation of power, pure and simple, and only when it is widely recognized as such, we suspect, is the Senate likely to be shamed into putting a stop to it.