Friday, April 06, 2007

Officers of the Court

Since the controversy about the selective firing of eight U.S. prosecutors last Autumn became a public and a political issue, I have from time to time wondered about those who are called “officers of the courts.”

Before last month, in the broadest sense of the phrase but excluding the administrative personnel (e.g., clerks, stenographers) employed by the courts, I would have included three categories: judges/justices, defenders, and prosecutors.

In the federal system, justices and judges (except bankruptcy judges and federal magistrates) are appointed by the president and confirmed by the Senate and serve for life unless removed for behavior. The Constitution does not prescribe qualifications to be met or what might disqualify a person. Over the decades, however, the usual practice has been for Senators or Representatives and legal organizations recommend candidates for appointment. Sometimes presidents have nominated cronies and political hacks and used the bench to pay off political supporters and big campaign donors. Inevitably, nominees tend to be of the same “temperament” as the president – e.g., a conservative president nominates conservative-leaning men and women while liberal or progressive presidents turn to those whose political philosophies are similar to theirs.

Upon confirmation, if they have not done so before, new jurists face what may be their greatest challenge. Since their “official” duties require the impartial application of law in the cases brought before them, judges must identify in their own minds those core values and ethical perceptions that constitute their sense of self and that serve as both a moral compass and a link to the community they serve. But they are also expected to identify and leave “at the chamber door” the politics of party, policy, and programs and to weigh whether a law or any part of a law adheres to or contravenes the Constitution, statutes, or administrative decisions.

In other words, while this begins as a political process – and one that can become extremely political before it ends – its product is supposed to be a-political. At the state level, however, some judges are elected, and are elected on a political platform or with a partisan identification.

The Constitution also provides that those accused of violating the law are entitled to competent defense representation in court. Anyone unable to afford to pay for the services of a person acceptable to the court (that is, one whose qualifications have been acknowledged and “has been admitted to the bar”) is guaranteed a court-appointed public defender. Since the courts have the responsibility to ensure representation is available and the power to appoint a defender, these defenders and those who litigate for pay are, unquestionably, officers of the court and in the court should be a-political.

Other than those who don judicial robes after the nomination-confirmation process – that is, those who “serve at the pleasure of the president – every four years just before the president-elect takes the oath of office (regardless of whether or not it is a second term) all presidential appointees are expected to formally submit their resignations. Those who do not resign can be fired – and in fact anyone serving at the pleasure of the chief executive can be fired at any time without having to be given a reason.

Federal prosecutors fall into the category of those who serve at the pleasure of the president. But as with those named to the federal court benches as judges and justices, prosecutors are confirmed by the Senate. (The attempt to subvert the confirmation process through invoking a little noticed emergency provision of the Patriot Act when there is no emergency – and then trying to cover-up the fact by lying to Congress is the catalyst for the current uproar.). But unlike judges and justices, prosecutors remain part of the executive branch.

Why? Because as I understand it, there is no constitutional requirement to prosecute. The executive is charged to enforce the laws of the United States. And while this is normally done by the legal system, other options exist.

This works as long as the Attorney General remembers that he is the people’s lawyer, not the president’s private lawyer/counsel.

It has not worked in this administration because this Attorney General still seems to think he is White House counsel. April 17 Attorney General Gonzales will appear before Congress to defend himself.

An unasked question – until now – is: will Gonzales act as his own attorney before Congress, thereby having a fool for a client – as the old caution asserts?


Anonymous Kyle de Beausset said...

I came across your blog by looking up an op-ed on Immigration and I was wondering if you would consider linking to Immigration Orange. Email me at beausset at fas dot harvard dot edu if your interested.

1:16 PM  

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