Who Will Replace Gonzales?

This column was written by Benjamin Wittes.

I don't say this with any pleasure. Gonzales is a genial fellow who has been very gracious to me on more than one occasion. I have tried over the past few weeks to view the emerging facts in the light most favorable to him. The trouble is that, approached that way, the facts are still devastating. Even if one doesn't believe that the firings were motivated by improper political considerations, the department carried them out in a manner that indelibly stained them with that reasonable inference. Once Congress and the press got hold of the story, both Gonzales and his deputy, Paul McNulty, made statements about the matter that appear to have been, well, false. And Gonzales then tried to distance himself from the whole thing, lamely taking responsibility — whatever that means — while saying that he wasn't aware of what his former chief of staff, D. Kyle Sampson, was doing. Sampson's testimony Thursday before the Senate Judiciary Committee contradicted Gonzales on important points.

The attorney general, in other words, is guilty — at a minimum — of a massive administrative blunder that has undermined his credibility and provoked a major executive privilege fight for the White House. And that could be an overly generous reading. Under these circumstances, Gonzales will never be a credible attorney general again, and his resignation — or firing — should be a foregone conclusion. There is, in fact, only one hard question concerning Gonzales's fate: Who should replace him?

You might not think finding a new attorney general would be difficult. Running the Justice Department is a plum post, after all, and the Republican Party has no shortage of first-rate legal talent. Indeed, in a normal administration or at a less sensitive time, replacing Gonzales wouldn't be hard. But, between a sinking administration that still demands loyalty above all else and congressional Democrats keen on using their new oversight powers, finding a candidate who satisfies both sides will be hard. The next attorney general must be someone acceptable enough to Democrats not just to get confirmed but to tamp down the fire Gonzales has witlessly set. But he must also be enough of a conservative to satisfy the White House. And he needs a reputation for probity and moral seriousness sufficient to speak to the public and to Congress with the respect that Gonzales obviously lacks. It's a tall order — a pinch so tight that it squeezes out almost all of the names being bandied about in public.

For a different administration, for example, James Comey would be the perfect nominee. Comey was deputy attorney general under John Ashcroft. He has been a U.S. attorney. He has good relations with congressional Democrats. And, in two key instances, he has shown the kind of independence from the White House that the next attorney general needs: He appointed Patrick Fitzgerald to the Valerie Plame leak investigation and, along with two other department officials, forced changes to the NSA's domestic surveillance program in the face of enormous pressure. And, for precisely these displays of backbone, he has virtually no chance of getting the nod. Bush reportedly once dubbed him "Cuomo"; the vice president's office would go to the mat to stop him. I'll eat this column if Comey becomes the next attorney general.

In a different political climate, both former Solicitor General Ted Olson and Laurence Silberman, currently a senior judge on the D.C. Circuit Court of Appeals, would be excellent picks. Both men have served with great distinction in the government — and Silberman on the bench as well. Both are conservative legal heavyweights. And both, I believe, would be strong attorneys general who would stand up to the White House when necessary. But convincing Democrats of that will be nearly impossible. Olson's confirmation as solicitor general back in 2001 was ugly, largely because of his own partisan activities during the Clinton administration. And, while his subsequent service has impressed some Democrats, he still has a rep. Similarly, many Democrats view the outspoken Silberman with deep suspicion because of his reputation as an energetic conservative force on his court. Either man's nomination would lead to a big confirmation fight and guarantee ongoing partisan confrontation through the rest of the administration.

Of the names being floated publicly, the one with the best shot of threading the needle is Comey's predecessor as deputy attorney general, Larry Thompson. Thompson, now general counsel of Pepsico, managed to emerge from Ashcroft's department with a reputation for good management and professionalism. The Bushies don't hate him, and his name doesn't rile Democrats either. He served as a U.S. attorney earlier in his career as well. Yet even Thompson would not be a worry-free pick. During his prior service in the Justice Department, he approved the deportation of a Syrian-Canadian named Maher Arar to Syria — where Arar claims he was tortured. The administration has tenaciously resisted accounting for this decision, and a Thompson nomination would provide a forum for uncomfortable pressure to do so.

One out-of-the-box possibility is the current solicitor general, Paul Clement. Clement is quite young and, other than running the solicitor general's office, has no particular management experience. Beyond this problem, however, he fits the bill to a tee. Since becoming Olson's deputy at the outset of the administration, he has emerged as one of the very finest appellate lawyers in the country. He has been a loyal soldier for the administration, arguing most of the important war on terrorism cases on its behalf, but he has reportedly also pushed internally, at times, for a more moderate posture on key questions like the process afforded to enemy combatants. Having worked for Ashcroft in the Senate, he is known and liked on the Senate Judiciary Committee, including by Democrats. He would be a formidable witness in oversight hearings — unlike Gonzales who was downright embarrassing. And Democrats, like the justices, would find they could trust him, even when they didn't agree with him.

Replacing Gonzales is only going to grow more difficult the longer he insists on hanging on. The deeper into the election season he goes — and the more confrontational inter-branch relations become — the narrower will grow the needle's eye through which his successor will have to wedge himself. For a man of such fierce loyalty to Bush, reducing the president's flexibility that way hardly seems, well, loyal. The real problem, however, may not be Gonzales's loyalty to Bush so much as Bush's loyalty to Gonzales. The president's continued support of him is in keeping with the long pattern of their relationship, during which Gonzales's poor record does not seem to have impressed upon Bush that many lawyers around town were better qualified than he for the crucial positions to which the president serially named him.

The Bush presidency has suffered greatly for the president's faith in Gonzales: With better legal advice, Bush could have fought less and won more on judicial nominations, and, more importantly, he could have postured the executive branch more constructively in the legal war on terrorism. But Bush has paid the price willingly, even eagerly. After all, Gonzales, like the U.S. attorneys, serves at the "pleasure of the president." After six years, the only reasonable inference is that Bush takes pleasure in the pain.
By Benjamin Wittes
If you like this article, go to www.tnr.com, which breaks down today's top stories and offers nearly 100 years of news, opinion, and analysis