Who Should Play God?

 

 

Law professors spend a lot of time worrying about the structure of the courts and who should be a judge or Justice. I worry more about who should be a prosecutor.

Here I suggest an institutional reform at the federal level. The position of U.S. attorney in the several federal districts should be chosen from within the pool of federal judges—preferably by those who have already vested in their pension, and if not vested, they should be allowed to return to their judicial post (with senior status) should they be removed from (or otherwise leave) their U.S. attorney post. If they fill out the entire term for which they were appointed (that is, the remainder of the appointing President’s four-year term), then they should go into a well-deserved post-judicial, post-prosecutor retirement. If the appointing President is re-elected to a second term, one immediately following a first term, then the prosecutor should be allowed to continue in his position during that second term. Either way, after the conclusion of the appointing President’s first or second term, retirement should be automatic. 

Under this reform, the position of U.S. attorney could also be chosen from within the pool of state (or territorial) judges who have vested in their state (or territorial) pension, but here, were such an appointee removed prior to the end of the appointing President’s four-year term, state law would control if they could return to their former judicial post.

Additionally, and more importantly, the position of U.S. attorney (but not an acting or temporary U.S. attorney, and not a recess appointee to the post) should be a terminal position. Once held, the person should be permanently ineligible to run for and to hold all other appointed and elected federal positions, including: President, Vice President, Senator, Representative, and presidential elector. A former U.S. attorney could take up the role of U.S. attorney in another federal district or return to his initial district in which he was first appointed should he have left that position.

The goal here is to appoint people to the federal prosecutor’s office who have already left the battlefield of politics. And likewise, the goal is to bar candidates who would use the position of federal prosecutor to seek greater office.

In a time when old norms, if not the rule of law itself, are seen to be dissolving, we would all do well to think about how to shelter what can be protected and what should be saved.

Seth Barrett Tillman, ‘Who Should Play God?,’ New Reform Club (Oct. 13, 2025, 7:15 AM), <https://reformclub.blogspot.com/2025/11/who-should-play-god.html>;