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The Bench Wars

May
8
2007

There are many reason why the saga of The Attorney General and the Fired Prosecutors is worrisome. But the least obvious and least discussed reasons are the most troubling. They’re going to be with us for a while.
That’s not to say there’s nothing to worry about in the short term. Attorney General Alberto Gonzales is stonewalling Congress; not exactly a new strategy for this administration, so determined to reclaim what it thinks of as the halcyon pre-Nixonian era of the imperial executive. But still, foolhardy. Gonzales has been less than honest about what – if anything – he knew about the firing of eight prosecutors. And he’s being dumb about who he’s misleading.
The folks working for him don’t seem too sharp either. Telling U.S. attorneys – not a modest bunch of men or women – that they’re being canned because of poor performance is a bit like tugging on Superman’s cape. You’re gonna get smacked and it’s gonna hurt. I mean, look, they’re not just lawyers – they’re prosecutors.
The job is a high-profile law enforcement job and it is a political job. That’s not to say that the offices are staffed by hacks. But the people who occupy those jobs are political animals. Want a life-imitates-art-imitating-life example? Consider former Sen. Fred Thompson and his current day job on the wildly popular Law & Order. He’s a prosecutor; he runs the office that decides who gets tried, who doesn’t and why. And, while he’s holding a state office on TV, that fictional job is manifestly political. Why? Do you think it’s because, in real life, Thompson, himself a former assistant U.S. attorney, Watergate Committee staffer and oh, yeah, former U.S. senator, is thinking of running for the presidency?
It ain’t no different across the real live Foley Square in New York City where the show is set. You need look no further than the actions taken by U.S. Attorney Patrick Fitzgerald – the guy who took former White House Aide Scooter Libby to trial for perjury – to get a sense of this. Still not convinced? Go back a few years and look at the career of an ambitious Italian-American named Rudolph Guiliani who first made a name for himself as the U.S. attorney for the Southern District of New York. First he and his band of ambitious prosecutors went after Wall Street insiders – including Michael Milken. Then they went after organized crime. Next thing you know, Rudy’s mayor of New York.
So the idea that Alberto Gonzalez is some how “politicizing” the U.S. attorneys’ office is, well, not exactly the huge and appalling shock that many Democrats would like to have us believe. High-profile prosecutions – which is what makes the office and often the man in the office – aren’t done in a vacuum. And everyone in politics knows it.


Which raises an interesting question: Are Senate Democrats upset that the Bush White House has decided to seed the U.S. attorneys’ offices across the country with potential Republican candidates? Or are they objecting to the use of politics to keep qualified Democrats – many of Giuliani’s lawyers were, in fact, Democrats – out of any and all jobs in those offices? Or, as is often in the case in these matters, a little bit of both?
Now, don’t get me wrong. The degree to which the Bush administration’s efforts monkey with the U.S. attorney’s office was ham-handed. The whole thing was clearly coordinated, not by the party, working through the states (which is the normal course of events), but by the White House working through the Department of Justice and, in particular, through Monica Goodling, a young woman who might, as they say, have had the sense God gave her but clearly has the political skills of a school girl. This stuff makes for great political theater and – the ethics aside – the Democrats are right to take the Bush administration to task.
But there’s something larger here that feels like it’s getting overlooked: the overall politicization of the judiciary – not just the prosecutors but the judges and justices who interpret the law. And it’s interesting that very few Democrats are talking about that. Which is yet another reason why “none of the above” – also known as “independent” – is the fastest growing political party out there.
For a while, it looked like the U.S. attorney firings might stand in for a larger question about the not-so-subtle influence that politics is having on all kinds of judicial appointments. Plenty of folks on the federal benches – most notably former Supreme Court Justice Sandra Day O’Conner – have been saying that they are disturbed by the increasing pressure being put on those who decide the meaning of the law. Joining that chorus might not be such a bad idea if, say, you wanted to be president.
But no. The problem is that Democrats are just as willing as Republicans to politicize the judiciary. Abortion is the code word here and you’ll hear that again and again in Sen. Hillary Rodham Clinton’s talks before female voters. You’ll start hearing it from conservatives like Sen. Sam Brownback and, eventually, Sen. John McCain. That’s not to say it’s unimportant. It’s just – as I wrote last year – not always the most important aspect of a judicial confirmation.
So, chances aren’t good that you won’t hear anyone running for president talk about taking politics out of the judicial process unless they mean “taking politics we don’t like” out of the judicial process. This small fight – the one over the attorney general and his defiance of Congress, his packing the U.S. attorney’s office with Republicans who may seek elected office – is the one that’s got the fewest long-range consequences.
Democrats would of course never engage in such behavior. Not unless they’re in the White House.

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