August 29, 2007
Daydreaming About Gonzales' Successor
The obits on Attorney General Alberto Gonzales are borderline gleeful, and for that reason it will be a good day indeed when Washington no longer has Al Gonzales to kick around anymore. There's little disagreement on how good Gonzales was at his job (not very) or whether he stayed on the job too long (he did). Now Washington insiders are playing their second-favorite sport: the speculation-a-thon.
Will President Bush really move DHS Secretary Michael Chertoff over to DOJ? Will there be an ugly nomination battle? And what will become of Gonzales, the man known affectionately (and not so affectionately) as Gonzo?
On Monday's "All Things Considered," the Washington Post's E.J. Dionne said, "If the president wants to avoid ongoing congressional hearings trying to figure out what happened in the Gonzales Justice Department, he's going to be much better off with a less political figure, somebody respected across party lines." Dionne expanded on that thought in his column yesterday morning, in which he advised Bush to nominate someone like Ed Levi, whom President Ford picked to clean house following the Watergate scandal.
Bush choosing the apolitical route is unlikely, however, for two reasons: detainees and intelligence gathering. From afar it might seem that the White House has been forced to compromise on these issues by signing the Detainee Treatment Act, issuing an executive order barring "cruel and inhuman treatment" of terrorism suspects and agreeing to return jurisdiction over domestic surveillance to the FISA court. That isn't exactly the case. So long as the administration is engaged in this vaguely defined war on terror, it will not consider itself completely bound to the letter of the law.
To prosecute the war on terror on his terms, Bush will need an AG who won't fight him on signing statements or the White House's claims that it may bypass Congress and the judiciary to fight terrorists. Remember the Detainee Treatment Act? The White House reserves the right to ignore it.
Quite a few legal scholars find the unitary executive theory of governance alarming, but it's not as far-out as it may seem. There actually are some solid arguments that the Founders intended the commander in chief to have the ability to interpret law apart from the courts. Bush could go to a well-regarded legal mind who at least can live with this philosophy without fishing from his pool of BFFs -- one of the main beefs with Gonzales in the first place. That probably rules out James Comey and Patrick Fitzgerald, two dreamboat candidates of Gonzales' critics.
Paul Clement, who will temporarily take the reins, is also being pushed as a long-term replacement. Administration officials have hinted Clement could be in that post for a while, but by that they may mean until Oct. 1 at the latest. That's First Monday, for all you Supreme Court novices. As solicitor general, Clement has proved a skilled advocate for this White House. It would be a little surprising if Bush decided to move Clement out of a job he's so good at to head the DOJ, particularly with all the qualified names floating around.
That brings us to Michael Chertoff, who is believed to be leading the pack. Nominating the current head of DHS will be complicated for the administration, because of discontent from the right over immigration reform and discontent from the left (and center) over the federal response to Hurricane Katrina. As a judge on the U.S. Court of Appeals for the Third Circuit and prosecutor, however, Chertoff was highly respected. That will be the experience that counts, one might think, so senators will have to decide on what basis they will judge him.
Democrats in Congress have a tricky road ahead. They clearly have benefited from the U.S. attorney firings scandal, which was dragged out by Gonzales' reluctance to step down. But Congress' approval ratings are in the gutter because of the perception that it has failed to deliver progress on Iraq and a host of other issues. The public probably won't receive a protracted and vicious nomination battle very well, so both parties will have to put a cap on how far they're willing to go.
As for Gonzales, his reputation seems to have taken an irreparable hit. The bipartisan verdict on him is that he is a dim, out-of-touch crony. But there may be one reason to cut him some slack: Harriet Miers.
It may have been her gender, but the venom raised by her 2005 nomination to the Supreme Court was largely vented at Bush, not at Miers. She wasn't attacked for being unqualified for the job so much as Bush was attacked for choosing someone who was unqualified for the job. Realizing that he was about to lose his base when the rest of the country had already abandoned him, Bush relented.
Gonzales was tapped to head DOJ on the heels of Bush's re-election victory. There were also concerns about his qualifications, but they were largely kept quiet. A sitting justice for life is one thing; running a department under orders from the White House is another.
Some critics assail Gonzales for guiding controversial policies on detainee treatment and surveillance. But as the infamous "torture memo" [PDF] shows, those policies were hatched in the Office of Legal Counsel, not by Gonzales himself. It does seem clear, especially from the notorious hospital room visit, that Gonzales was something of a hatchet man. But if so many critics attribute that to his being unprepared and unqualified to head DOJ, it seems contradictory that Gonzales would be viewed so much more harshly than Miers.
Miers is back at her old Texas law firm now, largely forgotten by the Washington establishment. At this point, Gonzales can only wish he enjoys the same fate.
Posted at 9:46 AM
Posted to:
Alberto Gonzales, Attorney Scandal, Bush Administration, Harriet Miers, President Bush
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