When the White House floated the name of former Solicitor General Ted Olson as the president’s preferred replacement for scandal-plagued Attorney General Alberto Gonzales, it was a poke in the eye to responsible members the Senate Judiciary Committee who were pressing for a nominee capable of rebuilding the Justice Department Gonzales had effectively destroyed.
Olson might have been an abler lawyer than the outgoing Attorney General. But the man who led the scheming to get the Supreme Court to prevent an honest recount of Florida presidential votes in 2000 is, if anything, more fiercely partisan and ideologically driven than Gonzales.
With the Justice Department in crisis as a result of instability caused by the politically-motivated firings of key U.S. attorneys, resignations of top-level managers, an exodus of career lawyers and revelations about crude political meddling with the mission of the civil rights division, the idea of putting a committed ideologue like Olson in charge was not merely offensive but frightening to Democratic and Republican senators who take seriously their oversight role.
Members of the Judiciary Committee made it clear, publicly and privately, that Olson would face a fight. Judiciary Committee chairman Patrick Leahy, D-Vermont, began to define the terms of what would have been the first serious confirmation battle of the Bush presidency — with the word "serious" being defined not by the passions involved but the prospect that the White House might not prevail.
Leahy and other key Democrats on the Judiciary Committee, particularly New York’s Chuck Schumer, believed they could defeat Olson’s nomination at the committee level with a coalition of Democrats and Republicans who are genuinely worried about the crisis at Judiciary, such as Pennsylvania’s Arlen Specter. Even if the nomination got out of committee on a tie vote, Schumer believed that Republicans who are worried about getting reelected in 2008, such as Maine’s Susan Collins and Minnesota’s Norm Coleman, would join Democrats in rejecting Olson.
After surveying the chamber, Senate Majority Leader Harry Reid announced last week that Olsen would not be confirmed.
The Republican National Committee issued statements grumbling about how: "Dems Try To Choose Bush’s Attorney General." Right-wing talk radio geared up for a fight.
But the White House was looking at the same Senate as Reid. And late last week, it appears, the president and his aides blinked.
Olson’s name was put back in the drawer. Instead, Bush has nominated former Federal Judge Michael B. Mukasey, a veteran prosecutor from New York who has close ties to former New York Mayor Rudy Guiliani but few links to the Bush White House, as third attorney general.
Mukasey is no liberal. He should tough questioning by the Senate — especially with regard to his past cheerleading for the Patriot Act. But he will also be remembered as the jurist who in 2003 agreed with lawyers for Jose Padilla that an appeal in the case of the accused terrorist could examine the legality of Bush’s designation of Padilla as an enemy combatant.
That show of independence, while it came in the context of an overall record of relatively conservative decisions in cases involving Constitutional questions, will sit well with moderate senators who are concerned that the next Attorney General be a competent lawyer rather than a presidential acolyte or an ideological activist.
As Schumer said Sunday, "While he is certainly conservative, Judge Mukasey seems to be the kind of nominee who would put rule of law first and show independence from the White House, our most important criteria. For sure we’d want to ascertain his approach on such important and sensitive issues as wiretapping and the appointment of U.S. attorneys, but he’s a lot better than some of the other names mentioned and he has the potential to become a consensus nominee."
Translation: Mukasey’s not a perfect pick, and perhaps not even an acceptable selection. But he is a better nominee than Ted Olson, if only because his background suggests that he might take seriously the fundamental task of restoring the Department of Justice.
So there will be no nomination of Olson, and no formal vote by the Judiciary Committee or the full Senate to confirm the most ardent champion of the right-wing Federalist Society’s campaign to warp the federal judiciary and the nation’s law-enforcement apparatus.
But no one should mistake what has happened: Olson has been blocked by the Senate. That is good news for the Justice Department, for the rule of law and for the Republic. It is, as well, a welcome indication that the system of checks and balances might yet be restored to a proper equilibrium. Hopefully, that restoration will continue with a thorough examination of Mukasey’s nomination that will recognize his superiority to Olson while still seeking assurances of his commitment both to cleaning up the mess made by Alberto Gonzales and, most importantly, standing up where necessary to the White House’s assaults on the Justice Department and the rule of law.
John Nichols’ new book is