SENATE POWER STRUGGLE Over Prosecutors!

A new Senate bill could strip federal judges of the authority to appoint interim U.S. attorneys, triggering a constitutional clash over the balance of power between branches of government.

At a Glance

• Bill introduced to end judicial power over interim U.S. attorney appointments
• Would give exclusive authority to President and Attorney General
• Current 120-day limit allows judges to appoint prosecutors after vacancies
• System dates back to post-Civil War legal reforms
• Legal experts debate risks of vacancies during confirmation delays

Origins of a Quiet Power

Senator Mike Lee’s bill, introduced on August 1, seeks to amend a rarely discussed but impactful aspect of federal appointments: who fills the role of U.S. attorney when confirmation processes stall. Under existing law, if a president’s nominee for U.S. attorney is not confirmed within 120 days, a district judge can appoint an interim prosecutor. This mechanism, restored by Congress in 2007, was designed to ensure continuity in law enforcement.

Watch now: Who Should Appoint Federal Prosecutors? · YouTube

Historically, this system evolved over time. In the aftermath of the Civil War, courts began stepping in to maintain prosecutorial functions amid political uncertainty. In 1986, Congress formally created a 120-day rule, allowing the Attorney General to make temporary appointments. If that window expired, judges could fill the role. Lee’s bill proposes eliminating that judicial fallback entirely, reallocating full interim authority to the executive branch.

Arguments for and Against

Supporters of the legislation claim the current process blurs constitutional boundaries. Allowing judges to select prosecutors who will argue cases in their own courtrooms, they say, erodes separation of powers and invites potential conflicts of interest. The bill’s proponents argue that the President and Attorney General should retain uninterrupted control over prosecutorial appointments, even if the Senate fails to confirm a nominee.

Opponents warn that eliminating judicial appointments could lead to vacancies in critical U.S. attorney positions. If the Senate stalls confirmations—due to political gridlock or senatorial holds—regions may be left without top federal prosecutors. This, critics argue, could compromise the Department of Justice’s ability to manage ongoing investigations or prosecute federal crimes.

The judiciary and Department of Justice have yet to issue formal responses, but some legal scholars note the bill would mark a significant realignment of how temporary authority is distributed during bureaucratic impasses.

The Path Forward

Currently, Lee’s proposal awaits consideration by the Senate Judiciary Committee. Its prospects remain uncertain amid a broader debate over how best to preserve both functional government and constitutional boundaries. If passed, the bill would remove judges entirely from the interim appointment process, leaving the executive branch solely responsible for naming U.S. attorneys—confirmed or not.

In the near term, the legislation could lead to temporary vacancies if political conflicts delay confirmations. Over the long term, however, it would establish a clearer—if stricter—division of labor between the executive and judicial branches. The question now is whether Congress believes that clarity is worth the potential risk of leaving key law enforcement roles unfilled.