Restoring Independence

By Erwin Chemerinsky

      President Ford's pick of University of Chicago President Edward Levi to be attorney general should be the model for President Bush as he replaces Alberto Gonzales. It is essential that the next attorney general be a person with impeccable credentials and unquestionable independence. The Democratic-controlled Senate should refuse to confirm anyone who does not fit this profile.
      Upon taking office in 1974 after President Nixon's resignation, Ford faced a Justice Department that had been tarnished by the Watergate scandal. Top officials, including former Attorney General John Mitchell, had been involved in the cover-up, which led to several being indicted and convicted. Others, such as Attorney General Elliot Richardson, resigned before being forced to participate in the firing of Archibald Cox as the special prosecutor.
      Ford rightly saw the need to restore credibility to the Justice Department and did so by naming Levi as his attorney general. Levi had been a law professor and dean at the University of Chicago before becoming its president. He was universally respected.
      His qualifications were obviously unassailable and no one could question his independence from the White House. He was a tremendous success as attorney general, and restored an image of professionalism to a tarnished department.
      Just as in 1974, the Justice Department today is tainted by scandals. It appears that U.S. attorneys were fired because their investigations were politically inconvenient and because they would not initiate politically motivated prosecutions. At the very least, Gonzales made inaccurate statements about his role in what happened. He denied any involvement, but records show that he was involved in discussions on the topic beginning in 2004, and that he attended multiple meetings about the coming purge. Both Democratic and Republican senators expressed dismay at Gonzales's testimony before Congress.
      In recent months, revalations arose about how Gonzales, while serving as White House counsel, went to then Attorney General John Ashcroft's hospital room to get his approval of a clearly illegal warrantless electronic eavesdropping program. Ashcroft, suffering from pancreatitis, was under heavy sedation. There is strong reason to believe that Gonzales lied to congressional committees investigating this incident. Even the head of the FBI has contradicted Gonzales's testimony.
      Though it has received less publicity, there has also been an unprecedented use of political affiliation in selecting staff attorneys. Monica Goodling testified before Congress about the routine use of ideology in the hiring process, something not seen before in filling civil service positions.
      Today, as in 1974, it is imperative that there be an attorney general who can restore credibility to the Justice Department, which among other things, is responsible for all criminal investigations and prosecutions undertaken by the federal government.
      It must be someone from outside the administration. There is already a rumor that President Bush will pick Michael Chertoff, the Secretary of Homeland Security, to be the attorney general. Although Chertoff has excellent credentials, he has been an integral part of the Bush administration. He was the assistant attorney general for the criminal division in its initial years, and after a short stint as a federal appelate judge, he returned as head of homeland security.
      Chertoff has been directly involved in many of the worst excesses of the Bush administration's efforts in the war on terrorism. He will not be perceived as having the independence necessary to undertake the essential critical examination of the Justice Department and to change its course when necessary.
      The new attorney general should be an individual who does not have a prior relationship with the president. All too often throughout American history, attorneys general have been presidential cronies who have lacked the independence to provide an independent check on the White House.
      Gonzales, for example, came with Bush from Texas and had been White House counsel before becoming attorney general. John Mitchell left the Justice Department to become Nixon's campaign manager. President Kennedy tapped his brother to be the federal government's chief law enforcement officer.
      Now, though, it is essential that there be an attorney general who Congress and the president can trust to reform the Department of Justice and restore its public credibility. Someone from outside the political process, like an Edward Levi, would be ideal.
      Another possibility would be tapping a retired judge. It is hard to imagine a person who would do more to restore the image of the department than retired Supreme Court Justice Sandra Day O'Connor.
      Hopefully Bush will pick someone of this caliber on his own. But if not, the Senate must insist on it. The Constitution did not make the selection of the attorney general the sole prerogative of the president. The Senate must confirm the nominee. Senate Majority Leader Harry Reid, D-Nev., and Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., should send a clear message that the Senate will not approve anyone from within the Bush administration and that the nominee must have sterling credentials.
      Gonzales's resignation provides the opportunity to begin serious reforms of the Justice Department. Senate Democrats must make sure that this happens.
     
      Erwin Chemerinsky is the Alston & Bird Professor of Law and Political Science at Duke Law School in Durham, N.C.