accepted, and nothing else. So I see a great benefit wholely apart from the question of policy direction, to having the U.S. attorneys in the various districts, change from time to time. So, then, it is a matter of how they are selected. The way that they are selected now-as Mr. Kleindienst said there are recommendations made by Senators. They are considered by the Department of Justice. If they are accepted by the Department of Justice, they are recommended by the President and the names of those people are sent back down to the Senate. Now that is a method of selection which, on the whole, as he said, I think works very well. The other way of doing it, it seems to me, would be to give new Attorneys General, when they come in, the power of selecting those people. I do not think that it would be wise to have the heads of the 93 U.S. attorneys offices there as permanent places. I think that it is wise to have a turnover and I am not hooked on the question of whether that turnover be conducted the way it is now, but I do think that the way it is conducted now has worked well. It has produced very good U.S. attorneys, on the whole, and I would put the burden of proof on the desire for change. Professor MILLER. May I ask a question about the appointment of Federal judges? Since the Government is the chief litigator, is it proper in your judgment for the Attorney General of the Department of Justice to be the screening organization for the appointment of Federal judges as well as the appointment of U.S. attorneys, about half of whom, I understand, eventually wind up on Federal benches? Mr. MARSHALL. Well I have no problem with the Department of Justice being a litigator before Federal judges, because Federal judges are there for life and they are there on good behavior. Once they have been nominated by the President and confirmed by the Senate, they are in there. There is nothing they can do-whether it makes the Attorney General mad or whether it does not make him mad-that is going to give him the power to remove him. It would be quite different if they were appointed for a term. Professor MILLER. Suppose a district judge would like to be a Court of Appeals judge and he has to get the approval of the Attorney General's office, of course, to be nominated, does he not? Mr. MARSHALL. Well Professor MILLER. Does this bother you? Mr. MARSHALL. Well, it could. It could, Mr. Miller, but I do not know of a better system. I do not know of a better system. Professor MILLER. Well, does it bother you? The other system. would be devised by the Congress. Does it bother you that there is this possibility that the Department of Justice is appointing prosecutors, judges, litigating, prisoning, bargaining, and everything else that goes on? Mr. MARSHALL. Well, I think-as I said to Senator Ervin-that there is no part of the Department of Justice that is sacrosanct. And, looking at all parts of it and saying should these parts really be in the Department of Justice, in the same agency, is wise. With respect to the appointment of judges, though, Mr. Miller, I must say that my experience is not that the Department of Justice appoints judges. The Department of Justice receives recommendations for Federal judges from Senators. It has, to some extentto some extent, but not wholly-a kind of veto power if on the merits, not because they do not like the man or because they disagree with his opinions or rulings, but on the merits they can show him to be unqualified. But, other than that, the Department of Justice really seeks the views of the bar associations and through the office of the Deputy they forward the recommendations of Senators to the White House. And, unless the President has a particular reason for not wanting to appoint a particular judge, that is the way the district court judges are appointed. Professor MILLER. One more question if I might, Senator? [Senator Ervin nods in the affirmative.] Professor MILLER. I would like a little clarification on that, on moving the Antitrust Division. You suggested it could be moved and perhaps civil rights enforcements, to independent agencies. Would they be subject, still, to the President's power of direction? Or would they be independent regulatory commissions and completely separate? Mr. MARSHALL. I have no position about that, Mr. Miller. I was simply suggesting that there are areas of the work of the Department of Justice that the Congress might look at and say to itself this area should not be run by the Attorney General that is appointed by the President. Now if it is not going to be run in that way, it would have to be run through some kind of an agency which is run by people with term appointments, like the Federal Trade Commission. I am not arguing that that is wise or not wise with respect to antitrust enforcement, but it seems to me that it is reasonable to look at it that way. Professor MILLER. What does it do with your constitutional argument, then, about the Executive power being in the President? You say you can spin off these things and stick them around, not subject to Presidential direction, and yet you say that the Executive power is in the President. What happens to your constitutional argument? Mr. MARSHALL. You are addressing yourself to Mr. Dixon's constitutional argument. My constitutional argument is only directed to the notion which seems to me to be in S. 2803 as presently written of taking the entire area of law enforcement as a bunch and moving the whole thing out of accountability to the President. That is quite different than the Congress saying that this particular area should be run in this way, which they have done with many laws already. I have no problem with that, as I have also said, Mr. Miller. I do not have serious reservations about the constitutionality of the special prosecutor bill because that singles out something for which there is a special problem, indeed, a constitutional problem because the problem is that the President is required to enforce laws against himself and his own people and I think Congress is not paralyzed from doing something about that. But what I have serious questions about, because of the structure of the Constitution more than the words of it, is the notion that you can take the entire area of law enforcement and try to move that out of the political control of the President. Professor MILLER. Thank you, sir. No further questions. Senator ERVIN. I think you made a very significant point when you stated, in substance, that despite the tragedies that we collectively call the Watergate affair, our Government has proved itself viable-which I take to mean that the congressional committees have investigated the matter and the courts have functioned and the courts have reached the conclusion that the executive branch of the Government, even the President, is subject to laws just like other people. Mr. MARSHALL. That is right, Senator. The safeguards worked this time. Senator ERVIN. So, with all of our disappointment with the Watergate affair, we can still take hope that notwithstanding that affairs, our Government has the vitality to continue to function in the legislative and judicial branches, as well as in the executive to some certain degree. Mr. MARSHALL. I believe so, Senator. Senator ERVIN. Thank you very much for a most interesting and illuminating statement. I might state that I introduced this bill not because I agree with its provisions, but because I wanted some blueprint to discuss these problems that have been pointed up by this great tragedy that has befallen us. Mr. MARSHALL. Thank you, Senator. Senator ERVIN. Thank you very much. I would like to submit for the record at this point a letter received from Congressman Rodino. [The letter referred to follows:] HON. SAM J. ERVIN CONGRESS OF THE UNITED STATES, HOUSE OF REPRESENTATIVES, Chairman, Subcommittee on Separation of Powers, Committee on the Judiciary, U.S. Senate, Washington, D.C. DEAR MR. CHAIRMAN: I wanted to take this opportunity to extend my support and best wishes for the important work that you and the Subcommittee on Separation of Powers are about to undertake. These hearings and consideration of your bill, S. 2803, mark an important step forward in the continuing effort to insure an independent administration of the laws, free from the direct political control of the Executive Branch. No principle is more fundamental to our system of ordered liberty than the tenet that we must remain a government of laws and not of men. The greatest threat to a free society is posed by any doubt on the part of its citizens that the rule of law is truly supreme. For that reason, and because of the central role played by the Department of Justice in the administration of American law, these hearings focus on as vital a concern as any facing the nation today. As you may know, I have introduced in the House legislation to establish certain qualifications for the office of Attorney General. I am hopeful that this proposal, like S. 2803, can be a vehicle for a new and serious look at the need to depoliticize the Department of Justice. In addition, the House Committee on the Judiciary has begun the preliminary phases of a major oversight review of the Department, with an eye toward achieving a lasting, substantive, and vigorous legislative oversight. Although I regret I shall be unable to make an appearance before your subcommittee at this time, I look forward to submitting a contribution for the record. With warm personal regards. PETER W. RODINO, Jr., Chairman. Senator ERVIN. The committee will stand in recess until 10 o'clock tomorrow morning, when we will meet here in the judiciary hearing room. [Whereupon, at 3 p.m., the subcommittee recessed to reconvene at 10 a.m., Thursday, March 28, 1974.] |