Opening Argument March 2007

Choosing the Next Attorney General

Running the Justice Department is a big, big job that can be done well only by people with superior abilities and judgment.

This is not a prediction that Alberto Gonzales will be driven from office because of the incompetence and untruthfulness recently manifested by the botched firings of eight U.S. attorneys and the multiple misleading and inconsistent explanations thereof. Even if President Bush's buddy hangs on until 2009, the Senate should henceforth reject any attorney general nominee whose only outstanding qualification is his or her relationship with the president. Democrats who want to run Gonzales out of town should also pledge that they will never again support a nominee of either party who is as ill-qualified as Gonzales is or—for that matter—as Robert F. Kennedy was in 1961.

Hindsight shows that RFK turned out to be a pretty good AG in many ways. (Approving FBI wiretaps of Martin Luther King Jr. was not among his better ideas.) But as of 1961, his main qualification was that he was the president's brother.

The Justice Department, which employs 110,000 people, is entrusted with advising the president and other federal officials on the limits of their powers; safeguarding our civil liberties; evenhandedly enforcing laws on terrorism, national security, civil rights, the environment, white-collar crime, antitrust, and narcotics; choosing judges; and running the FBI and the federal prison system.

Its prosecutors have "more control over life, liberty, and reputation than any other person in America," as then-Attorney General (and later Justice) Robert Jackson said in a famous 1940 speech to an assembly of U.S. attorneys.

Running this department is a big, big job that can be done well only by people with superior abilities and judgment, deep understanding of the law, and proven stature and independence. People who understand when to say no to a president eager to hear yes—and have the fortitude to make it stick. Especially when the president is a man who famously values loyalty above competence and tends to become peevish when challenged.

This is not to suggest that Justice should be run as a Federal Reserve-like independent agency unsullied by politics, as some have suggested. It is the president, not the attorney general, to whom the Constitution assigns the power and duty "to take care that the laws be faithfully executed." And the president's inherently political policy agenda has always, inevitably, driven the Justice Department's broadly discretionary law enforcement agenda. Democratic administrations tend to shift more resources into environmental, civil-rights, and tax cases; Republicans tend to focus more on pornography, immigration offenses, and voter fraud. That's all legitimate.

Nor is this to suggest that it is a bad thing to have a close friend of the president as attorney general. While an arm's-length relationship built on respect can work well—as with President Ford and Attorney General Edward Levi—a close and trusting friendship may work even better. Such a friendship increases the odds that the president will listen when, and if, the attorney general advises that some aspect of the White House policy agenda violates sound legal principles.

That's what happened when powerful denizens of the early Reagan White House and Republicans in Congress were enthusing over bills to strip the Supreme Court of jurisdiction over prayer, busing, and abortion, and over "legislative vetoes" to rein in federal regulators. But these forces were headed off by the new attorney general, William French Smith, a senior partner in a big Los Angeles law firm, who had also been Reagan's personal lawyer and friend.

Smith surrounded himself with a high-powered team including Theodore Olson, who took over the elite Office of Legal Counsel, where career lawyers led by Larry Simms had been a center of opposition to jurisdiction-stripping and legislative vetoes. Olson built on this institutional intelligence with his own research and decided that all of these measures were unconstitutional and (in the case of legislative vetoes) bad for the presidency in the long run. Olson and other top officials convinced the attorney general. Smith then convinced President Reagan. And because Reagan took Smith's word to be the law, that settled the arguments. The Justice Department went on to convince the Supreme Court to strike down legislative vetoes in the landmark 1983 Chadha decision.

On issues turning more on discretionary policy choices than on legal principle, on the other hand, the Smith team pushed sometimes-reluctant career lawyers to implement the president's agenda.

That's the way the system works when it's working best. The main ingredients are the exceptionally talented and dedicated career lawyers (such as Simms) in the Justice bureaucracy and a strong attorney general who respects and is respected by them as well as by the president.

But presidential friendship alone does not a good attorney general make. Nor does being a "loyal Bushie," in the phrase popularized by Gonzales's now-fired chief of staff, Kyle Sampson. Gonzales is an up-from-poverty success story and a hardworking, likable guy. But he has never manifested outstanding ability or judgment. Nor has he ever shown himself capable of steering Bush away from actions of questionable legality or prudence. Indeed, the attorney general's embarrassing handling of the U.S. attorney firings has been altogether in character.

Gonzales was plucked by then-Gov. Bush of Texas from a big law firm where he was a relatively undistinguished partner. As the governor's counsel, he sent Bush superficial memos that cleared the way for executions of more than 50 death-row inmates by dismissing their clemency petitions, while sometimes ignoring evidence of ineffective counsel, mitigating circumstances, and even possible innocence. His 20-some judicial opinions as a Bush appointee on the Texas Supreme Court were unimpressive, as have been his public performances as White House counsel and attorney general. People outside the administration who have tried to engage him in serious discourse about complex issues sometimes come away shocked by the superficiality of his knowledge and the shallowness of his analysis.

As White House counsel from 2001 through 2004, Gonzales had his fingerprints on Bush's most grandiose and insupportable claims of power in the war on terrorism. These included Bush's claim of virtually unlimited power to imprison for years, incommunicado, without real judicial review, anyone in the world whom he labeled an "enemy combatant."

Gonzales also implicitly approved the infamous August 1, 2002, Justice Department legal opinion asserting that Bush had the authority to abrogate federal criminal laws and treaty obligations and to order (if he chose) wholesale use of torture in wartime interrogations.

It was drafted by political appointees with major input from White House lawyers under Gonzales. But in his January 2005 Senate confirmation testimony, Gonzales uttered a batch of self-contradictory evasions about this legal opinion:

"I don't recall today whether or not I was in agreement with all of the analysis, but I don't have a disagreement with the conclusions then reached by the [Justice] Department.... I reject that opinion.... I am not prepared in this hearing to give you an answer [on its correctness].... [I had] discussions [with Justice during the drafting process] to make sure that we got it right, [but it] really would politicize the work of the career professionals [who played no role] at the Department of Justice" to express a view on whether the opinion did get it right. Pathetic.

The extreme Bush-Gonzales claims of power and treatment of detainees have not strengthened but rather weakened the counter-terrorism effort and the presidency: They have alienated potential allies abroad and so alarmed the Supreme Court that it has rebuffed Bush in all three big war-on-terror cases so far. A well-advised president could have won those cases.

As for the U.S. attorneys, there is a world of difference between firing such a political appointee for 1) being a Democrat; 2) failing to press the president's law enforcement agenda; 3) overstaying his or her welcome in a job that the White House wants for a political favorite; 4) prosecuting Republican lawmakers; or 5) failing to bring election-fraud prosecutions against Democrats on a timetable designed to help Republicans at the polls.

The first three are standard operating procedure. The last two—if they happened—would be unethical and arguably illegal. A minimally competent attorney general would instantly appreciate the difference. Did Gonzales? Perhaps. But the succession of misleading and contradictory statements from him and his aides—which may further weaken the presidency by fueling congressional demands for testimony by White House officials—inspire no confidence. Nor do Gonzales's comments (as reported by Newsweek) to three senators who visited his office to discuss the matter: "Why do I have to prove anything to you?" And "everyone [fired] was in the bottom tier." In fact, some had glowing performance evaluations.

When the president and the Senate choose Gonzales's successors, they need to do better. Much better.

Presented by

Stuart Taylor Jr., a contributing editor for National Journal, is teaching a course on the news media and the law at Stanford Law School.

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