LEWISTON – Now that the Republicans have captured the Legislature, the first critical decision to make is who should be Maine’s next attorney general (along with the other constitutional officers).

In my view, Mills would be the logical choice. No, not Janet. Peter.

As someone who spent 18 years in the Attorney General’s Office, ending up as state solicitor, and who is co-teaching a class on “The Role of the Attorney General” at Columbia Law School, I have an abiding interest in the Attorney General’s Office.

The attorney general performs a critical role enforcing the law, prosecuting offenders, advising state agencies and defending the state.

The attorney general must act in the public interest and must be willing to exercise independent judgment in interpreting and upholding the law.

One of the most difficult jobs of the attorney general is to tell the governor or a state agency that they cannot do something, or that they must do something that they do not want to do.

In Maine and elsewhere, this happens even when the governor and the attorney general are from the same party. The attorney general cannot be a rubber stamp.

Elections have consequences. The Republicans won, and therefore, they are entitled to elect a Republican attorney general for the first time in more than 30 years.

But that does not mean the Democrats are irrelevant in this process.

On the contrary, based on Maine’s unique system of electing constitutional officers, the Democrats can and should exercise a moderating influence in picking Maine’s next attorney general. Unlike any other state, most of which popularly elect their attorneys general, the Legislature elects Maine’s constitutional officers.

The House and Senate vote together in a secret ballot, and the person with the most votes wins.

Traditionally, the Republicans and the Democrats each nominate someone from their respective parties, and, following a party line vote, the party controlling the Legislature wins. But, it doesn’t have to be that way.

In 1978, the Republicans and the Democrats were pretty evenly divided in the Legislature.

After some Republican legislators crossed over, Democrat Rodney Quinn was elected secretary of state, and, after some Democratic legislators crossed over, Republican Dick Cohen (a career prosecutor) was elected attorney general.

Because it was a secret ballot, nobody knows which legislators crossed party lines to vote for Quinn or Cohen.

Given the current balance of power, a candidate with almost all Republican votes and some Democratic votes will win, and vice versa, a candidate with almost all Democratic votes and some Republican votes will win.

Although the Democrats could re-nominate Janet Mills, who I think has done a good job, it is hard to believe that any Republican legislators would vote for any Democrat for attorney general after more than 30 years in the wilderness. Thus, if the Democrats want to do more than offer a protest candidate, they should support a moderate Republican.

Peter Mills is such a Republican. As his two failed gubernatorial campaigns demonstrate, he may not be conservative enough to satisfy certain elements of the Republican Party. He certainly is more conservative than most of the Democrats in the Legislature. But that simply means that he is a moderate, which is a rare — and, unfortunately, reviled — commodity these days.

He has been willing to take positions that he felt were right, even if they weren’t ideologically pure. An attorney general with an independent streak is a good thing — we should want an attorney general who will follow the law regardless of political orthodoxy.

Someone with a lengthy commitment to public service will be able to lead, not destroy, an office that has some of the finest lawyers in the state.

Although it may be politically popular to attack the “bureaucrats in Augusta,” day in and day out, these lawyers perform vital work, such as prosecuting murderers, protecting children from abuse, defending the state against tort claims and much, much more.

The next attorney general should encourage the best and the brightest to work for the Attorney General’s Office, not drive them away.

The role of the attorney general is too important for Democrats to pout and sit on their hands, or to stand on “principle” by nominating their preferred, but unelectable, Democratic candidate.

Instead, they should nominate a moderate Republican or some other moderate independent who can attract support from both sides of the aisle. Did someone say that Eliot Cutler was a lawyer?

 

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