We have been treated to the specter of a highly politicized Department Of Justice. It is supposed to be the enforcers of law, the top cop, of the nation. Yet is is now a strongly political office acting to persecute one group and protect key players on the other side (presently Democrats).
Historically, the United States Attorney General has risen above party politics (at least most of the time), but now it is clearly just another Party Advocate and would be better titled Party Advocate General.
So how to fix that?
As you might guess, I have a “modest suggestion”.
Has this interesting information:
The United States Attorney General (A.G.) is the head of the United States Department of Justice per 28 U.S.C. § 503, concerned with legal affairs and is the chief law enforcement officer and chief lawyer of the United States government. The attorney general serves as a member of the president’s cabinet, and is the only cabinet officer who does not have the title of secretary.
The Attorney General is appointed by the President of the United States and takes office after confirmation by the United States Senate. He or she serves at the pleasure of the president and can be removed by the president at any time; the attorney general is also subject to impeachment by the House of Representatives and trial in the Senate for “treason, bribery, and other high crimes and misdemeanors.”
The office of Attorney General was established by Congress by the Judiciary Act of 1789. The original duties of this officer were “to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the president of the United States, or when requested by the heads of any of the departments.” Only in 1870 was the Department of Justice established to support the attorney general in the discharge of their responsibilities. The Attorney General, the Secretary of State, the Secretary of the Treasury, and the Secretary of Defense are generally regarded as the four most important cabinet officials because of the importance of their departments.
Now as I see it, back in 1789 they were seeing the office of President as appointed by the Electoral College with votes proportional to House & Senate members (per the original method described in the original constitution) so POTUS had to be acceptable to both sides, thus POTUS appointments would also be more balanced (lest congress toss THEM out too.) Now, post changes by various States to ‘elect the electors’ by popular vote, we have a strongly political position of President making strongly political appointments to office. While I’d also roll back that ‘election of the electors’ and have The President directly selected by the Electors selected by the Several States, that would require getting 50 States to go along with the idea…
So my modest suggestion is pretty simple. Since this AG office is created by an act of congress, it can be changed by them. Congress needs to change that law to state that the candidates will be selected by the House and confirmation will come from the Senate with a 2/3 approval needed for confirmation. That way it can’t be a political office. Then that ‘serves at the pleasure’ needs to become a “of the Senate who can remove them any time they fail to get a majority re-confirmation vote”. The hysteresis between 1/2 and 2/3 gives some stability to the job so you can’t have just one or two Senators marching in one day and calling for their removal by a change of 1 or 2 votes.
Furthermore, I’d suggest a similar change for the appointment of Supreme Court Justices, but that’s probably harder as it is set up by the Constitution so would take a Constitution change.
The one fly in this ointment looks like this part of the Constitution:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
So it might be that Congress can’t do the choosing as the list is only: President, Courts, Dept. Heads. Or it might be interpreted as examples following the broad actual limit of “as they think proper”… The Supremes will need to sort that one.
So it might be that they can’t make the nomination themselves. In that case, I’d have the AG nominees selected by the Courts. Which ones? Well…. I could see using The Supremes, but that has the risk of a packed court biasing things for decades. I suppose it might be more interesting to have the various Federal Districts select the nominee with a 2/3 vote. Again to assure they were acceptable to a broad base.
Frankly, I think this “appointment power stripping” ought to be applied widely to Presidential appointments. The degree of politicizing that goes on now is just too far beyond the pale. So I’d apply it to the head of the IRS, too. Perhaps have them appointed by the Courts too…
Fractious? Sure, but that’s the whole point of our original design of Government. To have folks fighting to a shared set of values broadly acceptable to the body as a whole.
As it stands now, someone “captures the flag” of the Presidency, and holds it for a few terms, they can cause extreme politicizing of the operational wings of our Government, and that was never supposed to be the case. As evidence, see Barry Obummer… or Bily Boy Clinton purging the Justice Department.
We need to make space for the non-partisan career worker. The legal department and tax collection in particular ought not to have a political spin or bias to them. To do that, they can’t be political appointments of one person in the oval office.
As I read the constitution, the Congress has the power to shift just where those appointments originate.