Politicization, Prosecution, and the President's Appointment Power

• In Event: Rethinking Conceptions of Presidential Power (Virtual Session)

Abstract

Scholars have largely ignored one of the president's most expedient approaches to control the administrative state in the modern era: appointments of unconfirmed, interim officials to top policy-making and enforcement positions. Since presidents can act unilaterally, interim appointments present valuable opportunities to alter both the trajectory of policy decisions and the representativeness of the decision makers. Moreover, while important scholarship examines the ways in which presidents strategically influence governing in the legislative and executive branches, these studies overlook an essential point of policy making through enforcement in the judicial branch. These distinct strains of research intersect with the president's strategic selection of the government's permanent and interim representatives in federal court: U.S. Attorneys. We argue that U.S. Attorney appointment decisions reflect the position's capacity to advance the president's law enforcement and prosecution priorities. We demonstrate this by analyzing an original, continuous dataset of all Senate-confirmed and unconfirmed appointees to the 93 U.S. Attorney positions from 1970 to 2021. We find evidence that the president's choice of unconfirmed federal prosecutors is associated with the districts' opportunity to deliver on their judicial agenda and the divergence in that agenda from the prior administration. We then analyze new data on the demographics of U.S. Attorneys to show how presidents have varied in their use of unilateral appointments to advance their political priority of a more representative federal bureaucracy.

Authors

• Christina M. Kinane, Yale University

• Lauren Mattioli, Boston University