Now that the party insiders have selected candidates for attorney general, we can anticipate a flood of ads focused on culture wars and other issues irrelevant to the position.
It’s time to rethink how Indiana selects its attorney general. The pitfalls of filling this important office with elected politicos have gone from annoying to absurd.
What does the Indiana attorney general do?
Very few of the attorney general’s duties should depend on politics.
The attorney general represents the state in appeals from criminal convictions; defends civil litigation against state officials and agencies; provides legal advice to state agencies and legislators; and defends the constitutionality of state laws even if he or she disagrees with them. The attorney general also takes action to stop or prevent consumer fraud and misconduct by those who hold various licenses.
In none of these matters should political viewpoint play a role. To the contrary, zealous advocacy and objective legal advice are paramount.
The attorney general may decline to pursue a position not because they disagree with the statute, policy or action under review. Instead, the attorney general should decline to defend a point only if the client’s position is legally indefensible. Here, the attorney general has the same duty as all attorneys to represent the client but to refrain from frivolous or unsupportable stances.
Because so little of the attorney general’s work depends on political views, election campaigns tend to emphasize relatively minor duties (such as administration of the do-not-call list) or even stray into areas beyond the job’s purview. A candidate who campaigns on legal intellect, courtroom experience, ethics, objective judgment or ability to run a large law firm is doomed to fail to garner voter support or attention.
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Worse, we seem to have attracted (and elected) candidates who are more interested in their own political futures and reputations than in the hard work of running and leading the office. This is a grave disservice and distraction to the many dedicated attorneys and staff in the office who are trying to do their jobs, often without sufficient resources.
They certainly watch in horror when their leader grandstands on the front lines of various culture wars, or is disciplined for ethical violations. And they must always be in fear that a political change in the office will threaten their jobs without regard to their abilities.
The attorney general is a statutory office and the method of selection can be easily amended. For example, the method of selecting the superintendent of public instruction recently changed from election to appointment.
How do we ensure the selection of an impartial attorney general who is not focused on getting reelected or building support for some future office?
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Many state attorneys general are appointed by the governor, which has the merit of making sure the top legal officer and governor’s administration are in sync, yet does not completely remove politics from the equation. The U.S. attorney general is appointed by the president and confirmed by the Senate and strives to act independently, but that does not insulate the office from accusations of political favor.
A better example is Tennessee, whose attorney general is appointed by the state supreme court for a term of eight years. The Indiana Supreme Court has been admirably nonpolitical and has a vested interest in selecting an attorney general who will capably and ethically execute the duties of the office without the distractions of politics.
Having served in both offices, I believe the Tennessee model functions well to eliminate the effects of electoral politics. The Indiana General Assembly should consider amending Indiana law to provide that the attorney general be appointed by the Supreme Court.
The objective judgment of the attorney general as attorney for the state and CEO of a large law firm is too important to be subject to the whims of the political process.
Wayne E. Uhl was a deputy attorney general in Indiana from 1989-2002 and an assistant attorney general in Tennessee from 1981-1988.
This article originally appeared on Indianapolis Star: What does the Indiana attorney general do? It shouldn’t be politics.
