Prosecutors have an obligation to use discretion in the cases they prosecute. Although this is a question of defense, it’s not crazy to think that a public lawyer in general must exercise some discretion that looks more executive than judicial.

Of course, ultimately most of these positions are quite political, so pretending otherwise is going to be counter-productive. It also doesn’t make sense to force political appointees to defend laws they dislike, and the result is going to be poorer argumentation and weaker decisions.

The trend of appointing outside counsel, with a power held either by the governor or the legislature, probably makes sense. It’s still vulnerable to the political process, so courts should probably be ready to appoint guardian-like counsel for orphan laws.