Toward a language of analysis of the Department of Justice: Thoughts stimulated by the US Attorney imbroglio

Sandy Levinson

I have no doubt that improprieties occurred with regard to the purge of the eight US attorneys by Alberto Gonzales and his minions in the Department of Justice. No person can take at all seriously his initial protests that it was simply a standard-form “personnel matter” or that the purged officials were anything less than highly competent. Nor is it even clear that they did not adequately prove loyal to a general agenda of how best to use the Department’s scarce resources of prosecution, which is surely a consideration that can legitimately be taken into account. What is far more ominous, of course, is the evidence suggesting that they were fired because they were willing to enforce the law against Republicans (Carol Lam, in San Diego) or to hold back on bringing spurious charges against Democrats in New Mexico. In any event, one can surely be glad that Democrats now have subpoena authority to try to get to the bottom of what is a potentially major scandal and not merely a political embarrassment. All of this being said, though, one should recognize that we scarcely have a language adequate to describe what we want, and are willing to accept, from the Department of Justice, which is, after all, one of the Executive departments under the President’s direct control.

A basic trope of any liberal political order is “a government of laws and not of individual men and women.” Law, ideally, is supposed to operate to some significant degree independently of the ordinary political process. To put it mildly, a central question of American jurisprudence, especially since Oliver Wendell Holmes washed legal pieties with what he called “cynical acid,” has been to make sense of this notion, given the obvious fact, for example, that presidents pick nominees, and the Senate confirms or refuses to confirm, on political grounds. (There is nothing at all new about this: John Adams’ appointment of the “midnight judges,” including his nomination of John Marshall to become our third Chief Justice, is the first great example of partisan “court packing," which was followed by the Jeffersonian purge of the newly appointed federal circuit judges in 1802.) A standard defense of life-time tenure (which I severely criticize in my book Our Undemocratic Constitution) is that limitless tenure is necessary to achieve the all-important “judicial independence” necessary to assure adequate separation of the legal system from the more partisan political one. (I argue that an 18-year term for Supreme Court justices would be enough to assure such independence and to guard against obvious problems linked with life tenure that are spelled out in the book.)

But it is obvious that the kinds of concerns about judicial independence are present as well with regard to law-enforcement officials like Attorneys General and US Attorneys, whose decisions may have more direct import on the lives of Americans than those of Article III courts. It is ominous indeed to view such officials as simply part of a president’s partisan corps of public officials, committed to using all of the powers of the US government to achieve partisan political agendas. But it is also naïve to view such officials as having nothing to do with such political agendas. Indeed, one can make little sense of American history without taking into account the degree to which “politics” has always played a part in choosing law-enforcement officials. This is certainly true of what Jack and I have taken to calling "high politics," but it would be a mistake to ignore the extent to which "low politics" regularly rear their ugly head.

A basic problem is posed by the elemental fact there are far too many laws on the books to be enforced effectively; as economists tell us, we necessarily live in an economy of scarce resources, including resources for law enforcement, which means that decisions must inevitably be made about which laws, for which reasons, merit vigorous enforcement and which, in effect, can be more-or-less ignored even though they remain on the books. One may or may not agree with a preference for the enforcement of pornography laws as against, say, the anti-trust laws (see, e.g., the Ashcroft DOJ), but it is foolish to say that such choices don’t have to be made. To a significant degree, we don’t have an adequate public language to discuss the making of such discretionary decisions and the concomitant realization that no president, in the age of the modern administrative state with its myriads of laws and regulations, can be expected to “take care,” as the Constitution requires, that ALL laws are enforced. We rely on officials within the Justice Department to make such discretionary judgments all the time, and such decisions are inevitably political in some significant sense.

This means, ultimately, that the character of DOJ appointees is paramount, since there is no way to avoid giving them a great deal of discretion with regard to calling down the long arm of the law on potentially vulnerable citizens. At the very least, one might prefer that Attorneys General have some degree of independent stature and a demonstrated capacity for good judgment before their appointments. Liberals who properly denounce the appointment of such presidential cronies as Nixon's campaign manager John Mitchell or the egregiously sycophantic Alberto Gonzales should recognize that perhaps the most truly indefensible appointment in the past half century was Robert Kennedy, whose sole qualification for the job was his status as the President’s brother and the assurance that he would use the formidable powers of the Justice Department in ways that would never embarrass JFK. As it happens, Robert Kennedy, by most accounts, turned out to be an exceptional attorney general, but this is a happy accident rather than a defense of such patent nepotism. Indeed, subsequent law properly prevents such a nepotistic appointment, though one can well believe that it has done nothing to prevent the appointments of cronies. Interestingly enough, the two great exceptions to crony appointments in the past 50 years are Gerald Ford’s appointment of the truly remarkable Edward Levi and Bill Clinton’s appointment of Janet Reno. It is glaringly obvious that Clinton and Reno had almost nothing in the way of a personal relationship and that she ran a remarkably independent Department of Justice. One might well believe that Bush wanted to make sure this would not happen to his own administration!

Still, the basic problem remains that we don’t really have a language adequate to expressing the relationship we are willing to accept between partisan presidents and the law enforcement officials within the Department of Justice. It might prove illuminating to look at the way that other political systems have responded to the particular tensions presented by the appointment of law-enforcement officials. Israel, for example, for all of its immersion in almost hyper-partisan politics, nevertheless has maintained a relatively independent Attorney General’s office that has, indeed, regularly prosecuted Prime Ministers and Presidents of the State. On the home front, one might pay attention to the fact that Tennessee’s Attorney General is appointed by the Tennessee Supreme Court. Or a number of states, including, for starters, New York, Texas, and California elect the Attorney General entirely independently of the Governor. This has its own problems, but it certainly assures that the chief law-enforcement official is not simply a satrap of the chief executive of the state. (This also makes practical hash of the argument that a "unitary executive" is necessary to good government.)

It would be a source of great partisan satisfaction is Alberto Gonzales is driven from office and if the Bush Administration is further exposed as the menace to liberal values that many of us have long thought it to be. But we should recognize that the issues raised by the treatment of the US Attorneys go far beyond the particulars that fill the current front pagegs.
Posted 12:20 PM by Sandy Levinson [link]