Utah's Attorney General Should be Appointed, Not Elected

Written by Jordan Garn, Utah Policy Contributor on . Posted in Policy Buzz

By now every lucid Utahn is well acquainted with the rapid fall from grace of John Swallow, the former Attorney General of Utah who recently resigned amid scandal and calls for criminal charges.

 

But it’s not just the leading character in this sordid act that merits indictment. Indeed, the process that brought us Swallow in the first place begs for close scrutiny or, better yet, out-and-out replacement. To that end, the Governor should not only appoint Swallow’s successor — but every Attorney General moving forward.

I reckon that right about now your inner populist is arguing that this country was founded on the principle that government officials ought to be held accountable at the ballot box. It’s so anti-democratic, the thinking goes, to suggest otherwise — only 17th century elitist thought would suggest we take this responsibility from the people.

Yet it behooves us to place a greater premium on filling the office of Attorney General with the brightest and most competent legal mind possible than following democratic edict for the sake of doing so.

The sound bites, slick fliers and fundraising prowess a statewide campaign demands are simply not conducive to filling the job with the most competent attorney possible. Conversely, though, Gov. Herbert helms the search for Swallow’s replacement. And subjecting candidates to an application process with the state’s CEO is much more likely to produce the skills matching the job description.

Not only does this top-down management strategy mirror the process any profitable business would undertake, but it’s consistent with the Constitution’s prescription that the AG “shall be the legal advisor of the State officers,” not the people. Anything short of appointment runs afoul of the very notion of attorney/client representation with the best interest at heart of the client — in this case, the Guv.

Just consider recent history. The electoral process produced a mere heads-up match between the career politician Swallow — undoubtedly better suited to lurk in the shadows of a John Grisham novel than fill public office— and an outstanding yet little-known attorney, Sean Reyes.

The people chose the John Grisham character, which brings me to the ethical concerns of having the Attorney-in-Chief in the business of raising money. At this juncture, however, making this argument is the intellectual equivalent of an athlete in his prime playing tag at a rest home. I’ll therefore spare you the lecture and refer you to the Beehive State’s ever pious and sanctimonious Democratic Party should you be interested in a tutorial on ethics.

Fast forward to present-day. The possibility of avoiding a long, arduous campaign and sparing one’s family the accompanying scrutiny clearly induces broader participation amongst attorneys who specialize in practicing law, not political campaigns. Not surprisingly, the appointment process efficiently produced seven highly qualified candidates. Their ranks include a former Supreme Court Justice, a career academic, a Wall Street attorney-turned-academic, a former military officer, amongst others.

The pool of candidates generated from the two respective selection processes tips the balance in favor of appointment. While it’s anyone’s guess who Governor Herbert actually picks, it’s already a given he won’t do any worse than “the people.”