Politics & Policy

The Next AG

Unsolicited advice for the White House.

Attorney General Alberto Gonzales announced his resignation this morning. National Review Online asked a group of politically astute legal experts for their reactions and advice for the next attorney general.

Jonathan Adler

Attorney General Alberto Gonzales’s resignation is long overdue. He became ineffective and ineffectual as the nation’s top law-enforcement official months ago. Many in the Department and the White House have been distracted from important work to clean up after him. One need not accept all of the allegations against Gonzales and the Bush Justice Department to recognize he had become a serious liability. Other than the president, it is difficult to find anyone who still had confidence in his leadership. The nation deserves better.

Solicitor General Paul Clement would be an obvious replacement, but Bush needs to look outside of the Department for an AG nominee, if not completely outside the administration. Homeland Security Secretary Michael Chertoff would be a solid choice, if he can be confirmed. His nomination could lead to another round of hearings on the mishandling of Hurricane Katrina.

Speed is of the essence in confirming a new attorney general. With so many high-level vacancies in the Justice Department, it cannot remain headless for long. No doubt some Senate Democrats may try and use confirmation hearings of Gonzales’s successor to score the administration and extract potentially damaging documents. The White House will be inclined to resist, often with justification, but it will need to balance such concerns with the nation’s need for new leadership at Justice.

– Jonathan H. Adler is professor of law and director of the Center for Business Law & Regulation at Case Western Reserve University School of Law.

Robert Alt

Following Attorney General Gonzales’s resignation, the White House can waste no time preparing their nominee for what will inevitably be a bruising confirmation hearing. This will be all the more true if the nominee is (as media outlets speculate) Michael Chertoff, which would provide a “perfect storm” of issues as far as Democrats are concerned — i.e., an opportunity to rehash the administration’s response to hurricane Katrina, as well as the anticipated line of questions concerning the programs at the Department of Justice with which they disagree. I have little advice on the former, other than that Chertoff should be prepared to be blamed for everything but personally causing the hurricane. For example, I would think that Democrats will likely bring hurricane victims to testify in order to make the hearings more television-friendly.

As for the latter issue, the nominee comes in with a slightly stronger hand one might expect. The major substantive issues that plagued Gonzales in the press were the Terrorist Surveillance Program, the torture memos/interrogation techniques, and the handling of the U.S. Attorney firings. Congress’s recent legislation authorizing the substantial elements of the president’s surveillance program should functionally take that issue off the table. The interrogation issue was largely settled back in 2005, when the White House agreed with Senator McCain on a torture ban. Which leaves the firings. Here, the nominee has the opportunity to simply say with some conviction all that should have been said from the beginning: that the attorneys served at the pleasure of the president. He can even be deferential, and suggest that if Congress really thinks that they need greater protection, they could provide it.

Notwithstanding the relative strength of these latter arguments, expect Senator Schumer and his allies on the Judiciary Committee to milk this confirmation hearing for all that it is worth. On another bright note, while we are awaiting the confirmation of the next Attorney General, we will be served by Acting Attorney General Paul Clement, the current Solicitor General, and one of the brightest and most capable lawyers I know in Washington.

– Robert Alt is a fellow in legal and international affairs at the John M. Ashbrook Center.

Roger Clegg

My off-the-cuff reaction is that the best person for the president to name to replace Gonzales is Ted Olson. He is (a) a conservative and (b) of impeccable character. He has a lot of experience in standing up to Congress, but also has a great appreciation for Justice Department as an institution and the special demands on it to be above suspicion when it comes to small-p politics.

Nominating him will signal Congress that the president acknowledges those special demands — but is unwilling to concede any ground to Congress with respect to his branch’s proper prerogatives (for example, executive privilege), let alone governing philosophy. The fact that Olson successfully argued Bush v. Gore and is a strong opponent of racial preferences is just icing on the cake.

– Roger Clegg is president and general counsel of the Center for Equal Opportunity.

Todd Gaziano

The president needs an experienced hand to lead Justice and deal with the vipers in Congress. In addition to prior, senior-level DOJ experience, other important qualifications include:

Someone who is a true conservative with a steely resolve and a thick skin, in short, someone who has proven under fire that he will do the right thing for the president and the nation and not worry about the petty attacks that come with the office.

Someone not directly involved in government decision-making in recent years (so that he is not subject to attack for this or that supposed mistake), but at that same time, someone who has remained active in the Washington legal and policy debates with a strong track record of success.

Someone who is unfailingly loyal to anyone he serves but also strong and independent enough to give frank and sometimes unwelcome advice. This may require someone secure enough in his current position and life-time achievements not to worry about his next job or how he is received by the mainstream press.

Someone who is genuinely concerned about the Department, sincerely interested in legal and policy ideas, dedicated to national security (prior military service is a plus), committed to applying the Constitution and laws as written, and who understands that the most important legacy a President may create (for good or ill) includes the life-time members of the judiciary he appoints.

Someone who everyone will concede is a disarmingly nice person.

My inspiration for the above job description is my Heritage colleague (and Ronald Reagan’s second attorney general) Ed Meese. Lest you think I’m sucking up to my superior who runs our department, I’m sure he would not approve of me suggesting he actually be called back to serve as AG. (Lucky for me, he’s out of the country today.) Heritage senior management would also be upset at me if he actually left. And Ed’s wonderful wife Ursula would probably not approve either. Nevertheless, the profile of Ed Meese above suggests that if the President should look beyond his current inner circle, he may find someone who is at least as loyal and who brings a level of stature and experience that can’t be matched inside the administration.

Todd Gaziano is the director of the Center of Legal and Judicial Studies at the Heritage Foundation, and previously worked in the DOJ Office of Legal Counsel.

Mark Levin

I never quite understood George Bush’s fascination with Alberto Gonzales. Gonzales struck me as a man of average intelligence and below-average competence. But this was known when he was nominated for attorney general and confirmed by the Senate. The Senate doesn’t like conservatives who are of above average intelligence and highly competent, e.g., John Bolton.

That said, the Democrat Congress — and more specifically Senator Patrick Leahy and Congressman John Conyers — has spent months conducting a political scourging of the man reminiscent of the old Soviet showtrials. As I wrote some time ago, watching him testify it was like witnessing the clubbing of a baby seal. But the fact is that there was no misconduct, criminal or ethical, by Gonzales. His firing of eight U.S. attorneys was perfectly legitimate. This entire episode was and is a political stunt raised to the level of a constitutional confrontation over witness testimony and documents Congress has no right to obtain. There’s nothing more dangerous than leftists with subpoena power.

But this was never about Gonzales, who is Chief Justice John Marshall compared to Janet Reno. And the liberals loved Janet Reno. No, the target is George Bush. And the purpose is to create the impression of corruption and law-breaking in a Republican administration in hopes of electing Hillary Clinton president. And we all know where Hillary stands on corruption and law-breaking, don’t we?

But the Democrat Congress isn’t done. Who will be next on their hit list?

– Mark R. Levin, a former Reagan-administration Department of Justice aide, is president of the Landmark Legal Foundation and nationally syndicated radio-talk-show host.

Wendy Long

The albatross, mercifully, will finally be gone from around the president’s neck and that of the Republican party in three weeks. The next 15 months could actually be the best ones of this administration for the DOJ, and the collateral benefits would be many. So the president should make the most of this chance to rally the party by appointing a strong, independent legal conservative who can press hard for outstanding judicial appointments, aggressively implement the laws protecting our national security, and earn the respect of everyone at the Department of Justice. The new AG must be a person of the highest intelligence and honesty, to be able to hold his own with Congress and win public confidence for the president’s legal policies and personnel. Paul Clement is, of course, such a person, but the president is probably best advised to choose someone who has not served yet in this administration — or any capacity for this President — to take away Congress’s ability to use the confirmation process as another political fishing expedition. If there is a solid, respected federal court of appeals judge willing to give up his lifetime Article III appointment, such a person would make sense, as would a Reagan-era legal eminence grise.

Wendy E. Long is legal counsel to the Judicial Confirmation Network.

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