LOS ANGELES – Then president-elect John F. Kennedy, summarizing the challenge of announcing that he had selected his brother to be Attorney General, famously suggested that perhaps he could go out and just whisper “It’s Bobby,” and no one would pay attention.
It’s hard to imagine any U.S. president today being allowed, by the Senate or the media, the privilege of appointing his or her brother (or sister) to the top law enforcement job in the nation.
The reason family relations aren’t appropriate is the same reason a president would want a relative in the job. As a friend said to me, in some distress, shortly after Bill Clinton appointed Janet Reno to the job, “the Attorney General is the only member of the Cabinet who can put you in jail. It’s no place for a stranger,” which is what Janet Reno was to the Clinton team.
They lived to regret the appointment, perhaps more than that of any other Cabinet member. But it’s also no place for a brother, or brother-equivalent.
Was he stupid, my son asked me, after I told him that Alberto Gonzales had resigned. The answer is no. He wasn’t stupid. He just didn’t understand his job.
Even as counsel to the president, he didn’t get it. He was too much like a brother to Bush-- instead of being the lawyer he needed to be, first for the president and then for the country.
Maybe I’m old-fashioned (although I hope not), but one of the reasons I went to law school, and have spent most of my professional career teaching and mentoring young lawyers, is because, Shakespeare notwithstanding, I think there’s something special about the rule of law and the duty to uphold it.
Sure, there’s plenty of politics involved in lawyering, particularly in the nation’s Capitol, but at a certain point, what makes law different is the obligation to ignore politics in the name of justice.
Take the issue of appointing U.S. Attorneys.
No Republican president is going to appoint me, or someone like me, to be a United States attorney because I’m a Democrat. With very, very few exceptions, Democrats appoint Democrats, and Republicans appoint Republicans.
If you want to be a United States Attorney, it helps – a lot – to have political connections, with the senator from your state who belongs to the same political party as the president, or with the president himself. But once a person is appointed as a United States Attorney, they’re supposed to be out of the business of partisan politics for as long as they have the job.
That doesn’t mean ignoring the policy goals of the administration. Obviously, if the administration is focused on corruption-- to take an obvious example-- it’s perfectly acceptable for the attorney general and the Department of Justice to convey that focus to the United States Attorneys around the country, and to expect them to allocate their resources and exercise their discretion consistent with that focus.
What you can’t do is translate that focus into a focus on corrupt Democrats as opposed to corrupt Republicans; take calls from senators of your own party seeking to intervene on behalf of their contributors; time investigations or indictments with an eye to helping your side win elections, or the other side lose.
Cabinet officials do those sorts of things all the time. Members of Congress turn it into an art form. But not prosecutors and judges. It undermines the rule of law, destroys confidence in the fairness of the system, and conflicts with the very notion of justice.
It’s one thing to give your friends a tax break or a serving of pork from the Congressional barrel. But when you have the power to deprive people of their liberty and even of their lives-- the greatest power of government-- you can be of politics, but your decisionmaking has to be above it.
As counsel to the president, Alberto Gonzales had no business rushing to the hospital bed of then-Attorney General John Ashcroft to try to convince a very sick man who had, for that reason, given up his power to his deputy, to approve a surveillance program that the deputy, and everyone else in the Justice Department, recognized to be unconstitutional.
Just because the White House Chief of Staff wanted it approved doesn’t mean a lawyer doing his job says “yes, boss.” A lawyer’s duty may be to act as “best friend” to his client, as my friend and former colleague, Harvard professor and former Solicitor General Charles Fried once put it-- but sometimes a best friend has to say no.
Gonzales’ job, as counsel to the president, was not to figure out a route around the acting attorney general to get approval for an illegal program, but to help his client understand why it couldn’t and shouldn’t be done. Loyalty to a fault, in a lawyer, is not a blessing but a curse, a violation of the higher obligation every lawyer has to the rule of law.
Had Gonzales “succeeded” in his mission to get the program approved, the result would not have been a triumph for the president, but mass resignations from the Justice Department, and a crisis both for the president and the administration of justice. When he moved from the counsel’s position to the attorney general’s job, Gonzales’ obligation to do the bidding of the White House should have become even more attenuated.
The attorney general acts on behalf of the United States; he represents the people, not the president. Prior attorneys general have seen it as their responsibility to protect those who work for them from political pressures, not to translate those pressures into action. That’s why most attorneys general have prided themselves on hiring young lawyers from the finest law schools in the country-- not the ones with the closest connections to the political base of the party.
Gonzales’ top aides were inexperienced politicos from no-name law schools who couldn’t have gotten in the door of a top D.C. law firm-- unless they were selling their political contacts rather than their legal skills. Gonzales hired these people not because he was one of them -- he wasn’t, and isn’t -- but because he was considering the kinds of qualifications that shouldn’t have played any role in his decisions. He was taking direction from the White House, acting like a Cabinet member, not like an Attorney General.
"It's very political, and that's the nature of it," Gonzales said in an interview the day after he resigned. "And all of us who come to work in these positions, we understand that. And people who don't think politics drives a lot of what happens here are naive. ... And maybe I was naive in terms of how government should work."
The former attorney general still doesn’t get it. He thinks politics drove him from his position. But it wasn’t the criticism of Democrats that cost him his job, but the massive desertions by Senate Republicans. And they deserted the attorney general not because he wasn’t political enough, but because he was too political.
It wasn’t a matter of not playing the Washington game when he should have, but playing it too aggressively when he should have just said no. He needed to be more of a lawyer and less of a politician, instead of the other way around.
Susan Estrich is the Robert Kingsley Professor of Law and Political Science at the University of Southern California. She was Professor of Law at Harvard Law School and 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 FOXNews.com.