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Nancy Gertner: Don’t scrap improved process for picking US attorney

Senators Elizabeth Warren and Edward Markey hosted a Senate hearing in Boston on October 2022 on MBTA safety.John Tlumacki/Globe Staff

In its May 18 editorial, “Biden and Garland should play it safe in choice to replace Rollins,” the Globe asserted that after the resignation of the current US attorney in Massachusetts, Rachael Rollins, the office needed a leader who is above ethical reproach and who has no political connections. To accomplish this, the editorial suggested, the two Massachusetts senators should be taken out of the selection process. “Don’t just follow the customary practice of letting Senators Elizabeth Warren and Ed Markey recommend the new US attorney,” it said.

The editorial is only partly right — about what new leadership in the office should look like — but not about how he or she should be selected. Nothing about the selection process for the current US attorney followed the “customary practice.” Markey and Warren set up a merit selection process, open to everyone and vetted by an independent advisory committee. The committee was bipartisan and diverse, with representatives from higher education, from small and large firms, and from different communities. Indeed, some of its members had never even met the senators. (I was the chair of the committee.) The committee received 21 applications. It narrowed the pool to four. A final pick was selected after the committee’s vetting and an extensive FBI investigation.


The customary selection process, before this, often involved candidates, many of whom had political ties, who happened to come to the attention of whichever senator was in office at the time. And although there were exceptions, that process largely produced a long string of Massachusetts US attorneys who may well have been eminently qualified but were from the same background, of the same race, the same gender.

True, we must do better. But it would be most regrettable if, as a result of this controversy, aspersions were cast on an open, independent merit selection process, especially one that encouraged diverse applicants.


Nancy Gertner


The writer is a retired US district judge and a senior lecturer at Harvard Law School.