California Scheming, the End of Gonzalez?

California is coming.

What it means no one really knows, beyond the fact that House Speaker Fabian Nunez wanted to keep his job, and putting a measure that would extend term limits on the February ballot is the best way to do it, which is why candidates who don’t have momentum or millions can say goodnight to their campaigns by Feb. 5 next year, when California holds its primary.

In a world in which everyone is jealous of Iowa and New Hampshire, the nagging question is always whether efforts to compete with the “first states” by moving contests up only make those two state contests even more important.

On the one hand, the argument goes, no amount of paid media can compete with the attention someone will get from winning those states. At the same time, California is no place to jump- start a campaign. The front-runners may be able to survive early losses, but they’ll be hobbling. The second tier will be wiped out. The race may be decided by the February contests, but it will be defined by the January ones.

Beyond that, the only ones certain to be helped by the move are Mr. Nunez and local broadcasters.

'Loyal Bushies'

"The vast majority of U.S. attorneys, 80-85 percent, I would guess, are doing a great job, are loyal Bushies, etc,” Kyle Sampson, then the Attorney General’s chief of staff, wrote to the White House lawyer who had asked about replacing all of them. Sampson went on to outline a plan to replace the rest.

Loyal Bushies?

What does that have to do with how good a job you’re doing as a prosecutor?

The United States Attorney is a political appointee. It’s fine to prefer loyal Bushies for the job, as every administration does, but you can’t judge their performance on those terms, giving points for how much their exercise of prosecutorial discretion helps you politically, and taking points away when it comes out of your hide.

Of course, that is how prosecutors are viewed by the political branches, by the White House and Congress. Good prosecutors get their guys. Bad prosecutors get ours. The tendency, when you have the power, is to want to get rid of the bad ones. This is how it is usually done in politics, after all.

Presidents asking that prosecutors who cross them politically be fired is nothing new; think Richard Nixon and Archibald Cox, and the attorney general and his deputy both resigning rather than carry out the president’s order to fire the prosecutor. The point of history is that the right answer was no.

You can get rid of the other guys' appointees and put in your own when you win an election. You can expect loyalty to the law enforcement priorities set by the administration. But it is quite simply wrong to judge prosecutors by the same political measures routinely applied to other political appointees.

Loyal Bushies protect their friends and target their opponents. Prosecutors are required to treat everyone the same. Politics in the broadest sense – administration policy – may influence the decision of what crimes to treat most seriously, but within those priorities, it simply has no place in deciding who gets prosecuted or for what, or who gets what deal.

Preferring Republicans over Democrats in pleas in the same way other government departments do in decisions should be grounds for removing a prosecutor, not retaining him. And if that is so, the whole idea of judging prosecutors by their political loyalty becomes obviously suspect.

I don’t blame Karl Rove for wanting to get rid of some of these folks. Who wouldn’t? It’s frustrating, to say the least, when people you appoint don’t toe the line. And Rove isn’t a lawyer, and given his recent experience, probably not a great fan of the profession.

But there’s only one right answer to that kind of request. No. That’s what is missing in the e-mails.

It is what has been missing from this attorney general’s response to executive efforts to expand presidential authority. Alberto Gonzalez seems to have too easy a time saying no to Congress, and too difficult a time turning down the White House. It’s the attorney general’s job to protect his prosecutors from political pressure, not devise a workable plan for wielding it.

If this were the first time it happened, his job wouldn’t be in trouble. Because it isn’t, the latest incident may be enough to topple him.

Alberto Gonzalez is by all reports both a very nice and very smart man. As White House counsel, his only job was to serve as the president’s lawyer, owing his loyalty to his boss. The attorney general, however, is also our lawyer. Doing the job involves serving the president but also saying no to him, working with the White House but also standing up to them.

Judge Gonzalez may be in trouble now because he was too good at the former at the expense of the latter.

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Susan Estrich is currently the Robert Kingsley Professor of Law and Political Science at the University of Southern California. She was previously Professor of Law at Harvard Law School and was the first woman President of the Harvard Law Review. She is a columnist for Creators Syndicate and has written for USA Today and the Los Angeles Times.

Estrich's books include the just published “Soulless,” “The Case for Hillary Clinton,” “How to Get Into Law School,” “Sex & Power,” “Real Rape,” “Getting Away with Murder: How Politics Is Destroying the Criminal Justice System,” and "Making the Case for Yourself: A Diet Book for Smart Women.”

She served as campaign manager for Michael Dukakis' presidential bid, becoming the first woman to head a U.S. presidential campaign. Estrich appears regularly on the FOX News Channel, in addition to writing the “Blue Streak” column for

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