WASHINGTON — Dramatic enough in itself, the announcement Monday morning that Attorney General Alberto Gonzales had resigned also set the stage for what may be one of most contentious confirmation hearings since the Senate rejected John Tower as defense secretary in 1989.
Tower’s defeat at the hands of a Democratic-controlled Senate was the last time any president has had a Cabinet nominee voted down, an event that has happened only 12 times since the republic began.
Will the Senate, which the Democrats control by a one-seat margin, be able to impose a consensus nominee on President Bush, someone in the mold of Sen. William Saxbe, R-Ohio, whom Richard Nixon was virtually forced to appoint in the depths of the Watergate crisis?
Weakened after the 1973 Saturday Night Massacre in which he ordered the dismissal of the special prosecutor, triggering the resignation of Attorney General Elliot Richardson and his deputy, Nixon had to come up with a nominee the Democratic Senate majority could accept.
Only once has the Senate rejected one of its own members as a Cabinet or Supreme Court nominee, that one being Tower.
Chance for Biden to shine
As for the implications for the 2008 campaign, only one Democratic presidential contender serves on the Judiciary Committee, Sen. Joe Biden of Delaware, who so often in the past has played a high-profile role in confirmation hearings, from Robert Bork in 1987 to Samuel Alito last year.
The hearings on the new attorney general will be a chance for Biden to serve as advocate of Democratic principles and to display his abilities as an interrogator.
Denver-based Democratic strategist/blogger David Sirota said the hearings on the new attorney general will be an opportunity for Democrats "to highlight how the Constitution has been trampled by the Bush administration, and how that should be a concern not just to Democratic base voters but to all Americans."
He added, "What Washington Republicans seem not to understand is that when the Bush administration lays waste to such core principles as privacy, civil liberties and freedom, they give Democrats an opportunity to go on the offensive with libertarian-leaning conservative voters in traditionally Republican areas like the Mountain West."
Video: Gonzales analysis As to the question of who would be willing to take on what appears to be a hazardous political mission, surviving confirmation and running a beleaguered Justice Department, former Republican senators, such as Mike DeWine and Jim Talent, are available.
"We're willing to bury the gauntlet as long as the White House meets us part of the way," said Sen. Charles Schumer, D-N.Y., a Judiciary Committee member and the third-ranking Democrat in the party's Senate leadership.
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"If the president nominates an attorney general who puts rule of law first and that attorney general will say 'Let's find out what went wrong, let's correct it and let's move on,' he will find a welcoming hand from the Congress," Schumer told reporters Monday.
But Schumer said probes, including the investigations of Gonzales' role in Bush administration policies such as the National Security Agency surveillance program, would "have to continue" even with the exit of Gonzales.
On Monday, Schumer was unwilling to offer names of his favored replacement for Gonzales.
"I'm not going to get into names today. I will be quietly suggesting some names to people in the White House. ... You don't want to create a division, you don't want a Democratic name out there at this point," he said.
But back in April, Schumer offered his own short list of nominees to replace Gonzales:
- Larry Thompson, former number two man of the Justice Department in President Bush’s first term. Thompson, now general counsel of Pepsico, is an old friend of Supreme Court Justice Clarence Thomas and appeared as a witness for Thomas during his Senate confirmation hearings.
- James Comey, who served as deputy in the Justice Department after Thompson left.
- Retired federal trial judge Michael Mukasey
Just last week, Mukasey wrote a lengthy op-ed piece for the Wall Street Journal in which he urged Congress to consider the creation of special national security courts to deal with accused terrorists such as Jose Padilla.
One of those Democrats, Sen. Ben Nelson of Nebraska, issued a statement Monday saying, "I had high hopes for his success. His failures have become a disappointment to those of us who had shown faith in him...."
Winning the support of centrist Democrats such as Nelson and Sen. Joe Lieberman of Connecticut, who also voted to confirm Gonzales in 2005, will be essential to Bush's hopes of getting his choice confirmed.
In a statement that was markedly less critical of Gonzales than other Democrats were, Lieberman said his exit "removes a distraction from the important work of the Department of Justice. ... As he leaves public service, the attorney general deserves our appreciation for his work for our nation."
Lieberman added, “We are at war, and it is imperative that we have an attorney general that inspires trust" and urged his colleagues to "move quickly in a bipartisan manner to consider the new nominee,” once Bush reveals who it is.
Need for top-tier scholar or practitioner
“The person appointed should have past Justice Department experience and have standing in the legal community as a scholar or practitioner of note," said Doug Kmiec, a top Justice Department official in the administrations of Ronald Reagan and George H.W. Bush.
The nominee should "be willing to serve as a transitional figure capable of bridging the gap between the extraordinary career talent, the remaining presidential appointees, and the on-going work of the Department, especially as it relates to the war on terror and the work of the U.S. Attorneys as it pertains to civil rights,” Kmiec added.
“The best model would be someone of the quality of an Edward Levi or Griffin Bell or William French Smith,” said Kmiec, who now teaches at Pepperdine Law School in California.
Levi, dean of the University of Chicago law school and a scholar far removed from politics, was appointed by President Ford in 1975. Bell, a federal appeals court judge, was Jimmy Carter’s pick in 1977. Smith, a lawyer in private practice, was chosen by Reagan in 1981.
Kmiec added, "the president might be well advised to pick a senior court of appeals judge appointed by Reagan; perhaps, Diarmuid O’Scannlain of the Ninth Circuit, Kenneth Ripple of the Seventh Circuit, or Edith Jones of the Fifth."
He said, "The integrity of these individuals is unquestioned; by virtue of judicial office, they have been freed of partisanship for some time, yet, by virtue of appointment, would be acceptable to the base of the President’s party."
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