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24 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW cus of such legislation would be to expand the authority of the local Attorney General, rather than to affect that of the federal U.S. Attorney64-it seems implausible that such an enactment would survive congressional veto. V. CONCLUSION The inescapable conclusion from the adoption of the Court Reorganization Act and the Home Rule Act is that Congress has demonstrated both the constitutional authority and the political will to delegate its Article I, § 8, clause 17 authority to "exercise exclusive Legislation in all cases whatsoever over [the] District," with respect to all three branches of the City's government. 65 The executive is an elected Mayor, and the legislature an elected Council. Both are ultimately dependent for their tenures in office upon the citizens of the Nation's Capital. Congress has reserved to itself by legislation the power to organize and to oversee the third branch of the government of the District of Columbia. So too may Congress remove itself, and the President, from the process of selection of its judges and prosecutors. As a matter of logic and law, there would seem no substantial basis for the contention that Congress could not similarly by statute provide for selection of the members of the District's Article I courts, as well as of counsel who represent the public when they appear before those courts, by the Mayor, by the Council, by the Mayor with the advice and consent of the Council, by the courts, or even by the citizenry through popular election. Both the Court Reorganization Act and the Home Rule Act are federal law, and they can, therefore, be changed by federal law. There is no constitutional impediment to the creation of a system whereby the selection of the judges of the Superior Court of the District of Columbia, and of the District of Columbia Court of Appeals, does not require their nomination by the President or their confirmation by the United States Senate. Nor does the Constitution mandate that prosecution of local offenses be in the name of the United States or through the office of the United States Attorney, rather than being placed in the hands of a local official. 66 All of this lies within congressional discretion, and all of these changes could be made without fear of constitutional challenge. Whether such changes would be advisable and desirable is the subject that the other contributions to this discussion now address. 64 Schrag, The Future of District of Columbia Home Rule, 39 CATH. U. L. REV. 311 n.162 (1990). 65 U.S. CONST. art. I, § 8, cl. 17. 66 The U.S. Supreme Court upheld the power of an elected local prosecutor to prosecute offenses against territorial laws-i.e., laws established by Congress in exercising plenary Article I powers similar to those under which it established the District's judicial branch-over 130 years ago. See Snow v. United States, 85 U.S. 317,! 321 (1873).
WHO SHOULD APPOINT JUDGES OF THE D.C. COURTS? Charles A. Miller* INTRODUCTION Since 1970, the District of Columbia court system has been comprised of the District of Columbia Court of Appeals and the Superior Court of the District of Columbia. 1 From the time of the establishment of the District, judges of its courts have been appointed by the President of the United States, acting on the advice of the Attorney General. When the general issue of District home rule came before Congress in the 1960s, one of the subjects considered was the judicial appointment process. In 1970, the District of Columbia Court Reform and Criminal Procedure Act 2 continued the Presidential appointment authority but made the appointments subject to Senate confirmation. In 1973, in the legislation known as the D.C. Home Rule Act, Congress modified the judicial appointment process by creating the District of Columbia Judicial Nomination Commission ("Commission,,).3 This body is charged with the responsibility of recommending three nominees for every vacancy on either the Court of Appeals or the Superior Court. The appointment power is retained by the President, but the selection must be made from the lists provided by the Commission. Presidential appointments also remain subject to Senate confirmation. The system established by the Home Rule Act has now been in place for over thirty-three years. The issue under consideration by the Third Branch Project is whether this system for selecting judges of the D.C. courts should be altered to be more consistent with the goal and concept of home rule. Specifically, this would mean transferring the appointment power for D.C. judges to the Mayor, and the approval power to the Council of the District of Columbia ("Council"). This report identifies the most important considerations relating to that question and recommends that the appointment and approval powers be transferred to the elected District officials. I. How THE CURRENT SELECTION PROCESS WORKS The heart of the present selection process for D.C. judges is the Commission. As established by the Home Rule Act, the Commission is made up of seven * Charles A. Miller, Covington & Burling LLP. 1 See District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub. L. No. 91- 358, § 11-101,84 Stat. 473, 554 (1970). 2 Id. 3 See District of Columbia Self-Government and Governmental Reorganization Act of 1973, Pub. L. No. 93-198, § 434,87 Stat. 774, 874 (1973).
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