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Lesson Learned

As Harriet Miers was to the position of Supreme Court justice, Alberto Gonzales was to the position of Attorney General of the United States. In both cases, President Bush chose a loyalist who was hopelessly unqualified for the relevant position. The best response to the Gonzales fiasco is to insist on a new era of bipartisanship in the appointment of the Attorney General--and to do so by reinvigorating the Senate's constitutional power not only to "consent" to but also to offer "advice" on high-level presidential nominations. To understand this suggestion, we need to back up a bit.

The Attorney General occupies a unique position within the national government. He is the president's lawyer, and one of his primary responsibilities is to protect his client's legal prerogatives and to defend presidential decisions in court. It should not be shocking that on unsettled questions involving war powers and the scope of executive privilege, the Attorney General almost always takes a strongly pro-executive line. At the same time, the Attorney General is no mere advocate. He is the nation's chief law enforcement officer, and he owes an independent duty to the law, above all to the Constitution. An Attorney General must be willing, on important occasions, to tell the president a firm "no"--and to insist that the law forbids the president from doing what he wants. Saying "no" will often protect the president himself, because it will prevent avoidable fights with Congress and the embarrassment, or worse, that comes from a loss in federal court. But the real importance of saying "no" is the affirmation of the rule of law.

Every Attorney General runs into sharp conflicts between his role as lawyer to the president and his role as the nation's chief law enforcement officer. In the aftermath of Watergate, many legislators thought that ambitious reforms should be undertaken to promote professionalism and independence. Bills were introduced that would give the Attorney General a legal status akin to that of members of the Securities and Exchange Commission--who can be discharged by the president only for specified causes, such as malfeasance in office or neglect of duty. And there is a clear precedent for this proposal: Almost every state in the union makes its Attorney General independent of its Governor, and independence seems to work pretty well. The basic idea was that if the president could not remove the Attorney General at his whim, the Attorney General would be far more likely to make independent assessments of the law. As a result, the president and the executive branch as a whole would be far more likely to act lawfully.

Nonetheless, the proposal to create an independent Attorney General was abandoned, in part on the ground that it is constitutionally doubtful. The Constitution vests executive power in the president, and law enforcement lies at the core of executive power. In any case, the president must work very closely with the Attorney General, and it would be awkward (to say the least) if the president was not the boss of his own lawyer. Critically, President Ford took much of the steam out of the reform proposals by choosing Edward Levi, the greatly esteemed and highly independent law professor, as his Attorney General.

It is easy to imagine innovative ways to increase the independence of the Attorney General. Like the Director of the FBI, for example, the Attorney General might be appointed for a ten-year term (while remaining, like the FBI Director, an at-will employee of the president). But such proposals run into a basic problem, which is that any president is entitled to have his own Attorney General, and should not be asked to work with someone chosen by his predecessor. (Should Hillary Clinton or Barack Obama be asked to work with Bush's choice? Should Rudy Giuliani?)

There is a better route, and it is no innovation. To see what it looks like, consider the words of the Constitution. The President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the Supreme Court, and all other Officers of the United States ..." Under modern conditions, the Senate's power to refuse its "consent" has become the crucial one. Some of the time, however, presidents have actually sought "advice" as well. When considering potential nominees to the Supreme Court, for example, President Clinton explicitly asked Orrin Hatch, then the ranking minority member of the Judiciary Committee, to offer some names. By his own account, Hatch mentioned two people: Stephen Breyer and Ruth Bader Ginsburg. In Hatch's own words, "I indicated I thought they would be confirmed easily. I knew them both and believed that, while liberal, they were highly honest and capable jurists .... From my perspective, they were far better than the other likely candidates from a liberal Democrat administration."

With respect to future Supreme Court nominees, the Clinton-Hatch discussion provides the right model. Both the Constitution and common sense suggest that appointments to the third branch should reflect a certain level of agreement between the Senate and the President, including a degree of bipartisanship. Something similar can be said of the position of the Attorney General. Before making a nomination, presidents should be expected to seek legislative "advice," prominently including advice from leaders of the opposing party. A process of this kind would produce an automatic constraint on cronyism--and on the choice of people who lack relevant experience or character. No responsible Democrat could or would have advised against the nomination of Edward Levi; many responsible Democrats would have strongly advised against the nomination of Alberto Gonzales.

There is a much broader point in the background, one that extends well beyond the current administration. In the aftermath of the attacks of 9/11, it has become all the more important to remove any perception that the United States thinks the rule of law is an irritation or an anachronism or an obstacle, rather than a central part of the system it is trying to protect. Even in ordinary times, the position of the Attorney General is unique. But when national security is at risk, presidents themselves must publicly acknowledge, in ways large and small, that they too are subservient to the law. A practice of serious presidential requests for the Senate's "advice," in advance of any Attorney General nomination, would not be a panacea. But it would represent a significant step toward acknowledging that while the nation's top lawyer owes a duty to his client, his overriding responsibility is to the law.

By Cass R. Sunstein