The Reitz appointment may be lawful hardball under the statute. But the statute itself exposes a separation-of-powers deformity. U.S. Attorneys prosecute for the Executive. They answer to the President through the Attorney General. They exercise Article II law-enforcement power. So why are Article III judges — the same judges who will later preside over criminal cases brought by that office — voting on who runs the prosecution shop? That is not clean constitutional architecture. It is a conflict factory dressed up as vacancy management. The problem becomes obvious when the politics flip. In Texas, judges cooperated with Trump’s pick. In New Jersey, hostile district judges effectively blocked Alina Habba. Same mechanism, different politics. If judges want independence, they should stop participating in executive staffing. The President already has leverage against a Senate that refuses confirmations: refuse their bills, force negotiations, make appointments a political cost, as Trump is already doing with the SAVE Act. But letting the judiciary serve as gatekeeper over prosecutors is madness. A court should judge cases, not help pick the lawyer bringing them. Congress should repeal the judicial-backstop provision and leave interim executive appointments inside the Executive Branch.
Due to Congress’s slow response to get anything done, it appears Mr. Muse explained why this was necessary. Judges don’t want independence, obviously, since Dem appointed judges have made it their life’s work to make lawfare towards President Trump their main purpose.
Amen.
(Great writing, again!)
The Reitz appointment may be lawful hardball under the statute. But the statute itself exposes a separation-of-powers deformity. U.S. Attorneys prosecute for the Executive. They answer to the President through the Attorney General. They exercise Article II law-enforcement power. So why are Article III judges — the same judges who will later preside over criminal cases brought by that office — voting on who runs the prosecution shop? That is not clean constitutional architecture. It is a conflict factory dressed up as vacancy management. The problem becomes obvious when the politics flip. In Texas, judges cooperated with Trump’s pick. In New Jersey, hostile district judges effectively blocked Alina Habba. Same mechanism, different politics. If judges want independence, they should stop participating in executive staffing. The President already has leverage against a Senate that refuses confirmations: refuse their bills, force negotiations, make appointments a political cost, as Trump is already doing with the SAVE Act. But letting the judiciary serve as gatekeeper over prosecutors is madness. A court should judge cases, not help pick the lawyer bringing them. Congress should repeal the judicial-backstop provision and leave interim executive appointments inside the Executive Branch.
Due to Congress’s slow response to get anything done, it appears Mr. Muse explained why this was necessary. Judges don’t want independence, obviously, since Dem appointed judges have made it their life’s work to make lawfare towards President Trump their main purpose.
I love the workaround for prosecutors. It preserves a shy fig leaf for GOP Senators with squishy seats like Collins. Let's skin some cats.
Is there an equally adept sleight of hand for stalled confirmations outside DOJ?
You are a better Constitutional scholar than most lawyers I know…and I know a lot of lawyers.