Fordham Law Professor Bruce Green, director of the Louis Stein Center for Law and Ethics, was quoted in this Law360 article about his belief that nominees for U.S. Attorney need to go through a confirmation process.
During a hearing held in Williamsport, Pennsylvania, on Aug. 15, attorneys for the government held that the 120-day time limit restarted with each appointment. But Judge Brann’s opinion said the language of the law and the provisions that followed it, allowing the court to appoint a replacement when the 120 days runs out, indicate that the clock began ticking once Bondi made an appointment.
The opinion noted that resetting the clock for each new appointment would theoretically allow the government to make an indefinite number of 119-day “interim” appointments, thwarting the requirement for a Senate confirmation or a court-appointed replacement. Bruce Green, director of the Louis Stein Center for Law and Ethics at the Fordham University School of Law, agreed.
“It’s important that nominees for U.S. attorney go through the confirmation process so that the Senate can weed out nominees who are unqualified or indifferent to the rule of law,” Green said. “The administration’s position would allow the president to circumvent that process for an entire four-year presidential term.”
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Numerous times in his opinion, the judge addressed the government’s arguments that similar appointments have been common practice in the past and said those didn’t stand up to the text of the law, which had not been addressed by the courts since the FVRA passed in 1998.
“I think he’s right that past practice doesn’t mean much,” Fordham’s Green said. “The laws are recent, and Congress hasn’t ratified practices that are inconsistent with the law. And prior administrations’ occasional indifference to the plain language of the law is not a reliable guide to its meaning.”
Read “Habba Ruling Could Put Tighter Limits On ‘Acting’ Officials” on Law360.