When President Obama needed an attorney general, he picked out someone he wanted (Eric Holder), wrote the name on a piece of paper, and waited for the U.S. Senate to approve his choice. Which it did, by a vote of 75-to-21. About half the Senate Republicans voted against the nominee, but none of them complained about the process. Nobody questioned the president's right to make the selection, or argued that an attorney general should be selected by popular vote. Anyone who did would have been not have been taken seriously.Presidents have been hand picking their attorneys general since George Washington chose Edmund Randolph in 1789.
But 43 of the 50 states do the precise opposite of what the federal government does. They turn the job of picking an attorney general over to the voters. If the winner gets along with the governor, well and good. But if he or she is determined to fight the governor, that's considered acceptable.
Logically, this is puzzling. The attorney general, whether in Washington, D.C., or Sacramento, is supposed to be the legal adviser to the chief executive, among other duties. Private citizens get to choose their legal advisers. So do presidents. It's just governors who have to put up with legal counselors who generally owe them nothing and who sometimes act in ways not supportive of the administration's programs.
This is why, over the past two weeks, we have seen Republican attorneys general suing to block the new federal health care law while their states' Democratic governors supported the law and wanted no part of any lawsuit. At the same time, Democratic attorneys general have refused to file the same lawsuits even though their governors wanted them to.
The 43 elected attorneys general are the ultimate independent actors of the American federal system. For the most part, they can sue anybody they want, intervene in any case that interests them, and offer any legal opinion that strikes their fancy. They are answerable only to themselves.
Of course, attorney general is not the only office that states make elective. The secretary of state, seen by many as a nonpartisan election administrator, is chosen by vote of the public in 38 states. There are a raft of elected state agriculture commissioners, school superintendents, controllers and auditors, all of them part of a gubernatorial administration but essentially unaccountable to it. North Dakota, which is 47 th in the country in population, has nearly a dozen separately elected state officers, including the insurance commissioner and the tax commissioner.
Our penchant for making many of these jobs elective dates back to the Progressive Era, when suspicion of concentrated executive power led state reformers to create new elected offices as a way of keeping the governor under control. If this is a desirable end, then it is fair to say the system worked.
For decades, anyway, there wasn't much controversy. Attorneys general, regardless of political party, advised the governor when asked, and otherwise generally stayed out of trouble. The equation began to change only in the early 1980s, when attorneys general of both parties began to realize just how much power they had if they were willing to use it. Led by Iowa's Tom Miller, the little-known but highly influential AG of Iowa, they began filing consumer-action suits against a diverse array of corporate interests, from pharmacists and funeral home operators to automobile companies. In many cases, these were multi-state suits. Most of them carried little hint of partisanship. In fact, says Miller, still serving in his post after 32 years, any given attorney general frequently didn't even know the partisan affiliation of colleagues who joined him in a legal action.
In retrospect, it may turn out that the late 1990s and early 2000s were the golden age of activism for AGs. That was the period when more than 20 of them banded together to sue tobacco companies and achieve a settlement whose value was estimated at $246 billion over a 25-year period. It also was the time when New York Attorney General Eliot Spitzer declared war on Wall Street, winning huge settlements against Merrill Lynch and other prominent investment firms without even having to go to court. "There has been this tremendous redistribution of legal power away from Washington," Spitzer explained. "Who better than state attorneys general to step into the void to ensure that the rule of law is enforced?"
It was in the aftermath of the tobacco lawsuit and amid the tumult of Spitzer's activism that the world of AGs began to morph into something much more partisan and contentious. In 2000, a group of Republican attorneys general, convinced that their Democratic counterparts had been bullying corporate America, banded together to form RAGA-the Republican Attorneys General Association-as a means of reining in Democratic activism. For the past decade, the job of AG has been defined much more by party and ideology than by any common approach to the responsibilities and opportunities of the job.
So it transpired, a couple of weeks ago, that 14 members of RAGA joined together to sue the federal government on the grounds that the new health care law was unconstitutional. This group included five whose Democratic governors wanted nothing to do with the move. When Washington State's Republican AG, Rob McKenna, acted to join the suit, Governor Christine Gregoire, a Democrat, shot back that "I don't know who he represents. He doesn't represent me."
Meanwhile, at least three Democratic AGs refused to become part of the suit despite entreaties from their Republican governors to do so. In Mississippi, Democratic Attorney General Jim Hood warned GOP Governor Haley Barbour, his putative boss, that "you are not authorized by this office to engage or employ counsel, file suit or intervene in pending litigation at this time."
Now, one can view the current legal actions on health care reform as a legitimate dispute over states' rights, or one can see them as partisan grandstanding. But wherever you stand on the larger issue, governors might argue that they should be making the call here, not pleading with subordinate state officials to come in on their side.