In 1961, Attorney General Robert Kennedy sent me to Kentucky to conduct an investigation of organized crime and official corruption in that area. Before I could get to the serious matters, I had to deal with a more exotic issue. The lame-duck U.S. attorney refused to leave office.
"The President of the United States appointed me to this job," he told me, "and I'm not leaving office until the President of the United States calls and tells me to leave." Despite my entreaties, he would not go, though President Kennedy already had appointed his own nominee who, with family and photographer in tow, was waiting to be sworn in. I pleaded my case to the local, octogenarian District Court judge; but he supported the adamant incumbent.
Back in Washington, researchers scrambled through law books to help me out of this predicament. Eventually, I was advised to tell the U.S. attorney and the judge that all that was necessary legally to bring about the change was to swear in the new man. If the judge would not do it, I was to go to anyone who had the right to administer an oath and get it done. The judge relented and swore in the new man. Message: The U.S. attoney serves at the pleasure of the President.
That is the legal story. But recent events have shown that the political aspect of appointing federal prosecutors, not the legal power alone, is a prime consideration. Traditionally, Presidents have deferred to local politicians to make the choice of U.S. attorneys in their area. The jobs usually are political plums that often go to supporters, former law partners and friends of senators and representatives. Defenders of this patronage system argue that most U.S. attorneys have been selected on the basis of merit and that the political ingredient is relevant and proper.
But in the wake of Watergate, the notion of merit section has emerged. The idea is that panels of independent, local citizens, with lay and lawyer members, representative of their community, should select a slate of meritorious candidates from which the President would select and appoint a U.S. attorney. The party in power could be expected to choose candidates from its ranks; but the choices would have some public sanction, they would be based on merit, and in appropriate cases a meritorious candidate from the other party (or with no political connections) could be appointed or retained.
Some senators are happy to be out of the appointment business and have already endorsed this idea; selection panels are operating in several states. But many legislators insist on keeping their historical powers.
Responding to the public's post-Watergate skepticism about government, politics, law and Washington, Jimmy Carter campaigned in favor of the merit selection of judges and U.S. attorneys. And his attorney general affirmed this policy during his confirmation hearings, promising a depoliticized Department of Justice.
But President Carter quickly finessed merit selection of federal trial judges. And it was later disclosed that in late December 1976 or early January 1977, Carter or Judge Bell assured Sen. James Eastland (D-Miss.) that the selection of U.S. attorneys would be left in the patronage system.
The issue heated up for Carter in New Jersey. There, a popular incumbent with a good record as a fighter against political corruption wanted to stay. Carter chose Robert Del Tufo, a Democrat, to replace him. It happens that Del Tufo was an ideal candidate for the job. I know him personally: He is an exceptional, experienced lawyer with a good reputation as an administrator. The circumstances of his appointment, however, made it look like he was a product of the spoils system; to uninformed observers, he appeared to be less suited than the man he replaced. It was the process of his appointment, not its merit, that demeaned Del Tufo. A merit system surely would have surfaced him; it would have made Carter look better, while our justice system would have appeared to be working in the public interest.
The situation with David Marston, the U.S. attorney in Philadelphia, is even worse. A political appointee himself, Marston's credentials for the job could have been questioned at the time of his appointment. But Marston turned out to be an aggressive prosecutor who secured the convictions of Republican and Democratic politicians. Reportedly, he was conducting another investigation with political implications just when Carter was pushed by a congressman to replace him. Recently, deja vu disclosures of coverup have emerged in press accounts regarding political pressure on the President by a politician who allegedly was under investigation by Marston. The serious questions that have been raised about the integrity of the justice system should be particularly embarrassing to an administration that marched into town proclaiming its virtue and its immunity from such political hanky-panky.
Rep. Robert Drinan (D-Mass.), a critic of what he calls "the buddy system" of choosing U.S. attorneys (a system that has resulted in few appointments of minorities and women), proposed legislation in March 1977. It would remove the President and Senate from this process, turning over all appointments of U.S. attorneys to the attorney general under the civil service merit system. Drinan argues that the President's power to appoint U.S. attorneys is not given by the Constitution but by the Judiciary Act of 1789. Since Congress gave the power to appoint "inferior" offices, it can take it back or limit it.
Sen. Richard Lugar (R-Ind.) introduced a resolution on opening day of the 95th Congress's second session calling for the Senate to "collectively relinquish" its control over appointments in favor of a system of merit selection of federal District Court judges, U.S. attorneys and U.S. marshals. Openly concerned about the political complexion of the 140 new judgeships Congress is expected to authorize, Lugar praised his colleagues from Colorado, Iowa, Kentucky, Oklahoma, California and Pennsylvania who voluntarily established merit selection systems in their states.
Lugar's resolution would require each senator to set up in each judicial district in his state an independent, nonpartisan, representative citizens selection commission. Since Lugar views the President's power to appoint these officials as a constitutional power, subject only to the Senate's advice and consent, his resolution would not invade the President's prerogative but would only provide a Senate-endorsed merit system for the President to use if he wished.
Recent events demonstrate why a real merit selection system is so important: Justice and the appearance of justice and all the parties involved in the justice system are demeaned when the selection and appointment process is conducted any other way.