Politics & the Rule of Law
By Patrick J. Kelly

Prosecutorial Politics

While this sort of scandal is hardly new, it does raise an interesting question: why is this a scandal at all? United States Attorneys are political appointees, who are regularly replaced when a new president takes office. Given the process by which candidates land the position of United States Attorney, shouldn’t we assume that politics are inextricably related to the job? Nonetheless, polls strongly indicate that the public’s reaction to the firings has been overwhelmingly negative. Certainly many factors may be influencing the public sentiment (some would argue that the outcry over the U.S. Attorneys is more an indication of the president’s unpopularity or the Democratic majority in Congress than anything else), but it seems clear that many people are reflexively repulsed by the notion of politicizing the process of attaining justice.

In order for the public to have faith in the justice system, there must be guarantees that politics do not dictate the decisions to pursue criminal prosecution or the determination of justice. Certainly, it is the prerogative of the Executive Branch to set the policies and guidelines for federal criminal prosecution. Nonetheless, given the idiosyncrasies of each individual case, it is impossible for U.S. Attorneys to perform their duty with the expectation that all decisions will be subject to review based on the Administration’s politics. While we can accept the fact that the Executive Branch sets the tone for federal prosecutions, it runs contrary to our understanding of an impartial justice system and the rule of law to believe that considerations of ideology and personal loyalty to the president should determine which acts are subject to criminal prosecution and when.

Judicial Politics

Of even greater concern is the possibility of the Judiciary being subject to political pressures. Beginning with the Founding Fathers’ decision to grant life tenure to federal judges, steps have long been taken in an effort to insulate judicial decision-making in this country from political pressure; but the inherent tension between our democratic process and an independent judiciary ensures that political considerations remain influential.

The United States Supreme Court decision in Republican Party of Minnesota v. White ruled that states may not prohibit judicial candidates from announcing their views on disputed legal or political issues. Subsequently, the 8th Circuit Court of Appeals ruled that states may not prohibit candidates for judicial office from identifying themselves as members of a political party, attending political gatherings, or seeking, accepting, or using political party endorsements. While declaring one’s allegiance to a particular political party in campaigning for judicial election is a long way from being removed from judicial office for failing to carry out the political wishes of the party, it does raise concern that the independence and impartiality of the judiciary may be eroded.

While the concerns raised by the firing of the U.S. Attorneys arise primarily from the fact that these federal prosecutors exercise their personal judgment in deciding which cases to prosecute, which cases to settle, and what punishments to seek, the scope of judgment being exercised by a judicial officer is that much greater. Judges make critical decisions throughout the adjudicative process: a judge influences the outcome of the case through the process of admitting evidence, by dispensing penalties, and in the case of trials to the court, by making decisions about guilt or innocence. Clearly, the concern that political pressure rather than considerations of law and equity will guide those decisions looms even larger than concern for the more limited charging decisions of the prosecutors.

Justice & Democracy

Both at the federal and at the state level, our forbears have bequeathed to us carefully crafted systems of government that are designed to balance time-tested precedent against contemporary need, elected authority against emergent consensus, and established power against new coalitions of interest. Maintaining these forces in balance, allowing and advocating for necessary change, and — in the spirit of blind Justice — carrying forward the legacy that’s been entrusted to us, is the charge we have been given, both as citizens and as lawyers. For me, it’s both the challenge and the distinct pleasure of being a member of this profession.

Judicial Selection

The Citizens Commission for the Preservation of an Impartial Judiciary (“Quie Commission”) in March released its report and recommendations regarding judicial selection in Minnesota in the wake of Republican Party of Minnesota v. White.  You will find the commission’s executive summary of the report on pages 30-31 of this issue.  I look forward to discussing these issues further with members at district Bar meetings this spring and I encourage you all to share in these important deliberations.

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PATRICK J. KELLY is president of the Minnesota State Bar Association, a founding partner in the St. Paul law firm Kelly & Fawcett, and a recognized Minnesota SuperLawyer.  He practices in areas of municipal law, labor and employment law and litigation, real estate, and administrative hearings.