In the next few weeks, the Biden administration will make a significant, but largely unnoticed decision affecting Utah. The president will nominate a new United States attorney and send that person’s name to the Senate for confirmation. Every person in Utah has a stake in who that will be.
The new United States attorney and the 45 attorneys that person will lead wield extraordinary, life-changing power. As important as anything, they are entrusted with the authority to enforce federal laws that protect the vulnerable; laws that, among other things, protect the disadvantaged, the abused and victims of hate crime, discrimination and official misconduct.
Utah’s senior senator has always had an outsized say in who the White House sends to the Senate for confirmation. How that works has never been especially transparent, and has always been partisan regardless the qualifications of the person who eventually became Utah’s United States attorney.
If he hasn’t done it already, in the next few weeks Sen. Mike Lee will interview people who want to be Utah’s next United States attorney. Whomever the president nominates will, in all likelihood, be the person selected by Lee. But, once again, the process is playing out behind closed doors.
The selection will be made by a partisan senator who has never overseen the investigation of a federal crime nor made a prosecution decision or taken a criminal case to trial. He has never been an executive prosecutor. He knows next to nothing about how a United States Attorney’s Office should run.
This year, for the first time in decades, the president has an opportunity to nominate a qualified person to be United States attorney who is non-partisan, who is not male, who is not white. For the first time in the 170-year history of the United States Attorney’s Office in Utah a woman, a person of color, could be the next United States attorney.
For too long, Utah’s United States attorneys have not reflected the state’s diversity. All things being equal, it is time for a woman to be confirmed by the Senate as Utah’s United States attorney; all the better if she is a woman of color. But no woman, no person of color, will get the chance to be the next United States attorney unless the selection process is more transparent, fair and objective. Unless Lee wants to do it differently.
Lee would do well to ask a non-partisan panel chosen by the Utah State Bar to give him a name to send to the White House. The panel should comprise non-lawyers and practitioners who appear in criminal cases before the United States District Court for the District of Utah. It should be a diverse panel chosen based on experience, particularly criminal justice experience; a panel of people with established reputations for independence, integrity and fairness, regardless their political affiliation. To protect the independence of the new United States attorney and the office, no current or former United States District Court judge or magistrate judge should have a say in who is recommended or nominated.
It might take a little more time and it is never good to leave the United States Attorney’s Office for long without a Senate confirmed leader, but for now the office is in the very capable hands of interim United States Attorney Andrea Martinez – proof, as Carlie Christensen proved brilliantly during two of the most unsettled periods in the history of the office, that a woman and, in Martinez’s case, a woman of color, can do the job.
David Schwendiman is a former assistant United States attorney who spent nearly 30 years as a line prosecutor in the United States Attorney’s Office for the District of Utah. He was the first assistant United States attorney from 1995 to 1998. He has also served as a war crimes prosecutor in Bosnia and Herzegovina, Brussels and The Hague, and as a U.S. Justice Department attaché and inspector general in Afghanistan. He is a former assistant Utah attorney general.