Bench Memos

Acting Attorney General Peter Keisler

In announcing his nomination of Michael Mukasey to be Attorney General, President Bush also named Peter Keisler to serve as acting Attorney General.  Keisler, who is widely regarded as one of the very finest attorneys in the country, heads DOJ’s Civil Division and for over a year has had pending his nomination to a judgeship on the D.C. Circuit.  He had recently announced his intention to leave DOJ, but now will be staying on for a while longer. 


Everyone should be grateful for Keisler’s continued service.  Alas, here is how the New York Times’s house editorial on the Mukasey nomination presents the news:


Mr. Bush also announced yesterday that he was replacing Acting Attorney General Paul Clement, who was to serve until the Senate confirmed Mr. Gonzales’s successor, with Peter Keisler, a hard-line movement conservative. Mr. Bush’s sleight of hand in installing Mr. Keisler is an unfortunate indication that he intends to keep the department politicized for as long as he can.


Never mind that there was a public announcement by the President, not a “sleight of hand.”  Never mind that no one who understands DOJ would ever think that a single person could carry out for long both the jobs of Solicitor General and acting Attorney General.  Never mind that there was nothing in the President’s temporary designation of Clement as acting Attorney General that signaled that Clement would remain in that capacity until a new Attorney General was confirmed.


For present purposes, I would instead like to contrast the NYT’s crazy assessment of Keisler as a “hard-line movement conservative” who will “keep the department politicized” with the saner voices of liberals who actually know Keisler.  Here’s a quick sampling of what those saner voices have to say.  (All but the last come in letters supporting Keisler’s D.C. Circuit nomination, but their applicability to his fitness to serve as acting AG is plain.)


Neal Katyal (opposing counsel in the Hamdan case):  Keisler “would be a fabulous judge”; “not an ideologue, but rather a lawyer who took tremendously seriously both his craft and his carefulness.”


Stephen Sachs (former Maryland AG):  Keisler is “especially well qualified to be an outstanding appellate judge”; “judiciousness … marks his values, his conversation, even his advocacy.”


George W. Jones Jr. (self-described “life-long Democrat” and former supervisor of Keisler’s):  Keisler is “easily one of the most talented and hardworking lawyers I have ever had the privilege of working with”; “there was never an instance in which I thought Peter approached any issue or conversation with a closed mind”; “one of the best listeners I know”; “always listened respectfully and with a sincere desire to understand my position”; “rare capacity and instinct to reserve judgment until he has heard and considered all sides of an argument”; “I can think of no one more capable than Peter to sit on the D.C. Circuit.”


Nine “Democrats or Independents” who were law clerks at the same time Keisler clerked (in all but one case working in different chambers):  Keisler is “straightforward, candid, and always respectful”; “the respect Peter so consistently shows for opposing viewpoints is one reason that many of us have become his friends”; he “would decide cases based on the law and facts, rather than his policy preferences.”


David Carpenter (self-described “political liberal” who worked closely with Keisler at Sidley & Austin):  “Peter absolutely epitomizes the kind of lawyer and the kind of person who should be sitting on a federal court of appeals”; “personally and intellectually honest, to the very depths of his bones”; “There have been many occasions in which Peter has refused overtures of others to slant the facts of a case in ways that were favorable to our client and that would, as a practical matter, have been immune from sanction or even detection”; “assiduous in trying to see and fully understand both sides of every issue”; “an extraordinarily fine listener”; “willingness, indeed his eagerness, to listen and to give others a chance to persuade him of a position”; “unfailingly courteous to and respectful of the people with whom he deals”


Virginia Seitz (former Brennan clerk):  “I am utterly and completely confident that he will approach the task of judging with both the desire and the ability to follow the law—that his intellectual and personal integrity will make him a judge without agenda and with a fierce commitment to the ideals of fairness and neutrality so critical to the judicial branch.”


Georgetown law professor Marty Lederman:  “I can vouch that Peter is an attorney of great skill, judgment, integrity and fair-mindedness; I am confident he will make a superlative Acting Attorney General.”

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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