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Dems Try to Choose Bush's Attorney General

By Ronald A. Cass

In the next few days, President George W. Bush will choose a new Attorney General to succeed Alberto Gonzales. Even before he does, Democrats and their allies are announcing that the President cannot name anyone they believe would be staunchly committed to Republican policies, to protecting the constitutional preserve of presidential authority, and especially anyone who has been associated with or served President Bush.

Senator Harry Reid flatly declared that former Solicitor General Ted Olson, a widely respected lawyer and enormously successful Supreme Court advocate, would not be confirmed. The New York Times applauded Reid and editorialized that the President must appoint someone who is "above politics," not a partisan who has been connected to this or prior Republican administrations. And Senator Pat Leahy weighed in as well with his demand for an Attorney General fully independent of the President. After all, he said, the Attorney General isn't like other Cabinet officers.

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At the outset, even the hardest of hard-core Democrats should concede that the President enjoys wide latitude in selecting his Cabinet. The Constitution vests the executive power of the United States in the President, and the Cabinet officers who assist him in administering the laws and exercising that power serve at the President's pleasure. From the beginning of the Republic, Senate confirmation of Cabinet members has been a deferential affair, with a few notable exceptions.

During Reconstruction, Congress tried to take away many of the President's constitutionally-committed prerogatives, including controlling the make-up of his Cabinet. The impeachment of President Andrew Johnson followed his refusal to obey the blatantly unconstitutional Tenure of Office Act, restricting his ability to remove wayward Cabinet members. Following that high water mark of congressional interference, matters returned to the accepted division of responsibility, with Congress recognizing that the President has substantial scope to pick the people he deems best to assist him.

Democrats did briefly make noises about the need for President Bush uniquely to make appointments of - or at least congenial to - Democrats following the razor-close (and bitterly contested) 2000 election. They demanded that Bush select Democrats to show that he is, indeed, "a uniter, not a divider," and they complained when he selected only one Democrat (Norm Mineta) for his initial Cabinet. In the end, however, they confirmed the President's selections.

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Now, Democrats are trying out explanations for changing the rules of the game to justify their pre-announced opposition to possible AG nominees. One creative entry comes from Senator Leahy, who asserts that the nation's Founders wanted those in charge of our justice system, including the AG, "buffered" from political influence. Leahy infers the Founders' intention to treat the AG differently from other Cabinet officers from the fact that North Carolina's 1776 constitution granted that state's AG life tenure. He conveniently overlooks the fact that, knowing this, the Founders chose a different structure for our national government, did not mention the Attorney General in the Constitution, and did not differentiate him from other Cabinet officers either in the founding documents or in the treatment they gave to Cabinet appointments under the early Presidents.

When did the Democrats decide that we need a non-partisan Attorney General without any ties to the President (or, better yet, to his party)? Certainly not in 1961, when John F. Kennedy took office after one of the closest and most suspect elections in American history - with credible allegations of serious vote fraud on both sides, not least in Kennedy's narrow victory in Illinois. Kennedy appointed his brother Bobby - then just 35 years old, nine years out of law school, and lacking any significant legal experience apart from work as a Hill staffer and campaign aide to his brother - to the post of Attorney General. When questioned about this, Kennedy famously quipped "the kid has to start somewhere." In the Kennedy style, it was a cute line, but the President's remark made it obvious that he wanted someone he trusted in the job, not someone with stature in the law much less independence from the President.

There is a legitimate objection to be made to someone who is too close to the President, whether that someone is Bobby Kennedy, John Mitchell, or Alberto Gonzales. It is reasonable to ask whether the individual has the inclination and the capacity to do the job assigned the Attorney General, to be the Government's chief law enforcement officer under the President, to administer the Department of Justice, to protect the best traditions of the Department, and to respect the rule of law.

At times, Attorneys General have been primarily close friends and advisers to the President. Kennedy is the best example of that, though there are many more. The Senate generally has seen that as an appropriate role for the AG, but obviously there are risks to that model. Someone closely tied to the President by bonds of family and friendship risks losing perspective on some of the difficult legal judgments that the AG is called to make, ultimately disserving the Department, the President, and the American people. Both Kennedy and Mitchell made bad judgment calls in allowing the Justice department to be used for political purposes. Similar accusations are leveled at Gonzales today.

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The best protection against those mistakes is for the Senate to use the confirmation process to assure that the AG nominee has a record of professional accomplishment and personal integrity and a commitment to the rule of law. Curiously, those qualities abound in exactly the individuals who are being condemned by Senator Reid, The New York Times, et al. Take Mr. Olson, for instance, who has been a top-rank lawyer for more than 40 years, an Assistant Attorney General, and a Solicitor General, and who is generally acclaimed (by liberals as well as conservatives) as one of the nation's best appellate lawyers. Or Judge Larry Silberman, who over a distinguished 45-year career has been a well-known lawyer and businessman, Solicitor of Labor, Deputy Attorney General, and ambassador, as well as a judge on the US Court of Appeals for two decades. Both have been active Republicans who worked for Presidents and causes that liberals dislike. Both have demonstrated time and again their independence and their devotion to the law, even if their interpretations of the law may not always please those on the political left.

When liberals announce, before the President has made a selection, that these and other well-qualified individuals should not be selected and will not be confirmed - without waiting for a hearing, listening to what the individual selected has to say, or finding out what other respected lawyers and legal scholars say of them - those liberals subvert the very rule of law they purport to defend.

Their pronouncements are rooted in the supposition that any Republican with any ties to the President, Vice-President, or key advisers cannot be trusted to make reasoned decisions on legitimate grounds. That is a shocking and baseless accusation, one that if indulged undermines the ability in good faith to function in a two-party system.

Of course, many liberal Democrats, and many sympathetic independents and Republicans, have questions about the wisdom of decisions taken by General Gonzales and by the Administration. That is to be expected when difficult judgments affecting our liberty and our security are being made. But hyperbolic assertions like the New York Times declarations that "the Justice Department is a disaster zone [that] has been contaminated by partisan politics" and also that "the nation's top lawyers may have broken the law, and even may have sent innocent people to jail, to advance the interests of the Republican Party," do little to advance the cause of non-partisanship or respect for law. All of that from a newspaper that contaminated its own claim of independence, just a few days earlier, by subsidizing moveon.org's scandalous attack on General Petraeus.

Before the Democrats and their friends do lasting damage to the Presidency by undercutting prerogatives of office historically recognized under Democrats and Republicans alike, let's hope that cooler heads prevail, that the rhetorical temperature subsides, and that Senator Reid decides to wait for nominations and hearings - and even votes from his colleagues - before announcing results. That will do far more than high-strung editorials and unilateral pronouncements to advance the rule of law.

Ronald A. Cass is Chairman for the Center for the Rule of Law, Dean Emeritus of Boston University School of Law, and author of "The Rule of Law in America" (John Hopkins University Press).


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