I appreciate Andy McCarthy’s response to my post on the judicial coup in Utah. At the risk of starting a mutual admiration society, I’m loath to disagree with Andy as a longtime fan of his work — especially as it relates to the world of the U.S. attorneys. That said, I think I’m still right when it comes to what’s going on in Utah.
Just because district courts have a statutory power over U.S. attorney appointments doesn’t mean it’s one they should exercise freely, especially in cases like this where the political process is moving along relatively unobstructed. Insofar as there were delays in Melissa Holyoak’s nomination they were both understandable and not really any business of the court. The delays in the Senate due to the SAVE America Act relate to its ability to confront the district court and aren’t an excuse for its behavior.
As a preliminary matter, Andy asks whether we know that DOJ asked the district judges to vote on retaining Holyoak, suggested that we don’t know because I relied on deduction from public sources. I’ll clear that up: We do know. They did ask. As a general matter if I can ground information gleaned from private sources in publicly available information, I try to. But suffice it to say, I didn’t just wake up on Monday and check the District of Utah’s “meet the U.S. attorney” page.
1. What’s the deal with district courts appointing U.S. attorneys? Andy is right that it’s permitted by statute but I think he misses the mark in assuming this statute is constitutional. The argument in favor of the statute goes that interim U.S. attorneys are inferior officers and therefore the Appointments Clause allows for their appointment by, among others, “the Courts.”
Assume, as Andy does, that an interim U.S. attorney is an inferior officer (the caselaw on who’s principal and who’s inferior is opaque enough that it’s not worth arguing about). The fact is that it’s still an executive office. Just because the statute allows for interbranch appointments doesn’t mean that they’re constitutional.
The judiciary’s power to appoint inferior officers should properly apply to authorized judicial officers — for example, magistrate judges, bankruptcy judges, circuit executives, clerks of court, and the like. Courts no more have the constitutional authority to select — and therefore control — someone who exercises federal power than Congress should have the ability to select — and therefore control — the director of the Administrative Office of U.S. Courts. That the U.S. attorney-appointment power is one delegated by Congress doesn’t help because it’s the same constitutional problem for Congress to give away executive power as it is for courts to accept it.
For better or worse our separation of powers locates each of the three powers — legislative, executive, and judicial — in each of the three branches. The executive power belongs to the president.
The practicalities are head-scratchers, too. What does a court-appointed U.S. attorney’s commission even look like? Is it signed by the chief judge? Does the chief judge “authorize and empower him to execute the duties” of the office? Again, a judge empowering someone to execute prosecutorial power seems like a real problem. As I understand it that sort of thing is common in continental European systems of law, but this isn’t Italy.
2. So courts probably shouldn’t have this power as a constitutional matter, but Congress did give it to them. Does that mean they should just exercise it?
To begin with, the history of this power is relevant. The origins of the judicial-appointment statute date back to the Civil War, when the circuit court was empowered to appoint district attorneys (as they were then known) in certain circumstances.
As an expedient, this makes some sense. Communication was slow and the situation was fluid over a vast continental polity. Someone needed to enforce federal law and it was neither clear that the president could see to a proper appointment nor that a Senate meeting only occasionally could always confirm someone. Circuit judges were federal officers with life tenure and resident in the states, so if worse came to worst they could step in and ensure that someone was enforcing federal law.
It goes without saying, this is no longer the case. Whatever practical, wartime reason there may have once been for the constitutionally dubious practice of entrusting this appointment power to judges, it no longer exists.
3. Until about nine months ago, the vast majority of district judges understood this. I have a hard time finding any instances in modern history where a district court used this power either to refuse the reappointment of an interim U.S. attorney or to appoint one of their own choosing until the current Trump administration. Indeed, during the previous Trump administration the conventional wisdom in the attorney general’s suite on the fifth floor was that judges were cognizant of the constitutional problems in the arrangement and therefore very reluctant to do anything but reappoint interim U.S. attorneys. I can’t recall them doing otherwise.
Of course during that administration the U.S. attorney process was rather more traditional than in the current administration. It’s probably the case that some of the today’s…unconventional…picks should not have been approved by the district courts. Of course many of the courts have gone much further than that in, for example, selecting their own U.S. attorneys contrary to the wishes of the president.
The actions in places like N.D.N.Y, D.N.J., and E.D. Va. also — again, while understandable — have provided a permission structure for other courts to feel their oats. In Milwaukee, for example, the court led by the left-wing chief judge, Pam Pepper, declined to appoint interim U.S. attorney Brad Schimel. If his name is familiar it’s because he was the elected attorney general of Wisconsin and then a state circuit judge. He still didn’t make the cut? No. As they explained, “The Court awaits the nomination and confirmation of a full-time United States Attorney by the President and United States Senate.” I’m a staunch defender of blue slips, but even I recognize that it’s not Pam Pepper’s job to protect the prerogatives of Tammy Baldwin.
5. Which brings us to Utah. Up until a few months ago it would have been unheard of for the District of Utah to reject an obviously qualified interim U.S. attorney, let alone one who’s sailing to Senate confirmation. That it had the statutory power to do so wouldn’t have factored into it: It simply wasn’t done. Now it is.
Again, unlike all of the other such cases in recent months Holyoak is sailing to Senate confirmation. That makes her situation especially inexplicable. Pam Pepper apparently set her sights too low insisting that Baldwin have a say in their U.S. attorney; in Utah they insist that Mike Lee and John Curtis may have had their say but they got it wrong.
If the judges in Kentucky had done this to an interim U.S. attorney that Mitch McConnell supported, he would have gone on the war path. They also would never have done this in a thousand years. Not only had McConnell signed off on all of their nominations but they would have understood that needlessly offending their senior senator is bad for business.
In Utah every active district judge was approved at some level by Mike Lee. He returned his blue slip for the two Obama judges, Jill Parish and Robert Shelby. Howard Nielson had his strong support. David Barlow was Lee’s first Senate counsel, after which Lee made him U.S. attorney. I’m pretty sure Anne Marie Allen was recommended by Lee to Joe Biden and, in any event, Lee lobbied his colleagues doggedly to support her in her 100-0 confirmation. Are they to have us believe that Lee’s personnel judgment was sound in each of their cases, but not in Holyoak’s? Lee must be livid — or at least he ought to be.
6. Andy places much of the blame on Trump for delaying Holyoak’s nomination, but this argument misses the key context of her prior service at the FTC.
For the first three months of the Trump administration Holyoak was one of only two members of the FTC, so he couldn’t very well nominate her then. Even after she and Chairman Andrew Ferguson were joined by Mark Meador, the agency was in contentious litigation against former commissioners Alvaro Bedoya and Rebecca Slaughter, both of whom Trump had fired. While Bedoya dropped his case along the way, the FTC didn’t get a durable stay in the matter until September. The number of FTC commissioners would literally change day by day, injunction by injunction. In that circumstance, too, it would have been imprudent to nominate Holyoak. It’s not surprising that she was announced and appointed only in the months after the durable stay and cert grant in Slaughter.
That context should have no bearing in how the district court approaches the issue. Intrabranch conflicts in Washington, D.C., aren’t in their purview absent a live case or controversy in their court. (Keep in mind that this conflict is very obviously going to be resolved in the president’s favor.) The conflict does, however, explain why Holyoak’s nomination took as long as it did.
It’s also not the business of the district court whether or not the president wants his U.S. attorney to serve as an FTC commissioner first. These are valid personnel and policy decisions for the president to make and it’s not at all obvious why a district court gets to grade them.
7. Andy and I agree that the Senate could correct this situation as soon as next week if it wanted to. Where we disagree is what that means. Andy seems to see the Senate’s frolic and detour into the SAVE America Act (or whatever we’re calling it now) as part of the same set of misplaced priorities that stalled Holyoak’s nomination and which aren’t the court’s fault. I tend to think it’s a willful abdication for no good reason of the Senate’s advice and consent power in the face of a district court that’s out over its constitutional skis.
Put aside the merits of the Alina Habba and Lindsay Halligan nominations and appointments. There is a broader and metastasizing problem nationwide of district courts availing themselves of powers they recognized were probably unconstitutional until yesterday.
These cases are not all alike. Maybe the president’s personal lawyer installed to go on a revenge tour warrants some functionalist play in the joints when it comes to district court intervention — I won’t cry about it, all other things being equal — but this does not imply that district courts can just remove people they don’t like or because they’d prefer Senate confirmation or whatever it is Zahid Quraishi is doing in New Jersey. Indeed, therein lies the danger of functionalism. If you give a district court an Alina Habba, it will want a Brad Schimel.
The Holyoak situation — with its blue slips and iminent floor action — presents a rare opportunity for Senate Republicans to push back on this arrogation of power by the district-courts. The misplaced priorities of the current kabuki theater in the Senate aren’t the problem; they’re a missed opportunity to address the actual problem of district judges exercising executive power.