By Pat Nolan and Kevin Ring
The U.S. Senate recently approved Judge Neil Gorsuch to serve on the Supreme Court. The Senate’s vote occurred only after Gorsuch answered hundreds of questions about his legal philosophy, temperament, and qualifications for the High Court. This thorough review is appropriate for such a powerful position.
In the coming months the Senate will also consider President Trump’s nominees to serve as US attorneys across the country. These government prosecutors will wield awesome authority. Indeed, the late Supreme Court Justice Robert Jackson said a federal prosecutor “has more control over life, liberty, and reputation than any other person in America.” Yet if the past is any guide, none of the president’s nominees will be asked a single question about their prosecutorial philosophy, approach to the law, or their temperament.
That is a shame, and we hope this year the process will be different. We recently joined with several other advocates of criminal justice reform to urge the members of the Senate Judiciary Committee to take the time to ask some basic questions of the nominees before voting to place them in such powerful positions.
For example, it is important to know if they are committed to protecting the authority of the states. Traditionally criminal law has been in the purview of the states other than for actions that cross state or international borders. However, over the past 50 years, the number of federal criminal laws has expanded dramatically, undercutting state authority. Judiciary Committee members should ask the nominees what factors they will consider when deciding whether to intrude into state or local prosecutions.
Justice reform advocates from across the political spectrum also have raised concerns about the vagueness and breadth of these new federal criminal laws. The late Supreme Court Justice Antonin Scalia worried how an average person could know whether their actions violated the law when the statutes were so broad and vague. Scalia wrote in one opinion:
“It should be no surprise that as the volume [of new laws] increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nitty-gritty.”
We also think nominees should be asked about their commitment to ensuring that defendants receive a fair trial. The constitutional guarantee of due process requires that government disclose evidence they have that would exonerate the defendant or undermine the credibility of witnesses. The system relies on the integrity of the prosecutor to disclose this evidence. Unfortunately a growing number of federal prosecutors have failed this test of integrity, leading federal judge Alex Kozinski to diagnose an “epidemic” of prosecutorial misconduct.
In addition, we believe the committee must ask potential US attorneys how they would promote fairness in sentencing. An expansion of federal mandatory minimum sentencing laws over the past 30 years has given prosecutors extraordinary bargaining power. This enhanced power is a major reason why an astonishing 97 percent of all federal indictments result in guilty pleas. The downside risk of fighting for your innocence is a decade or more in prison – a price too high for most people. Thus, the prosecutors leverage a “win” without having to prove anything in court.
Because federal prosecutors are given such great control over the lives of the people they prosecute, Senators should seek to elicit the nominees’ understanding of the appropriate use of such considerable authority over personal liberty as well as the constitutional limits which restrain them.
It should be noted that our request for greater oversight does not reflect any particular concern about those selected for these important jobs. And posing such questions need not stall the confirmation process in any way. But just as it is important that Supreme Court nominees be questioned about their philosophy and approach to the law, so should federal prosecutors answer similar questions before they are given so much power.
Pat Nolan is the Director for the Center of Criminal Justice Reform at the American Conservative Union Foundation. Kevin Ring is the president of Families Against Mandatory Minimums and editor of Scalia’s Court: A Legacy of Landmark Opinions and Dissents.