Note: This column was originally published by Findlaw.
The ranking Republican member of the Senate Judiciary Committee, Arlen Specter, called Attorney Alberto Gonzales’s command performance on Thursday, April 19, 2007, his “reconfirmation hearing.” Needless to say, this was hyperbole—for Gonzales has already been confirmed by the Senate long ago and thus will serve until he resigns or the President removes him. Neither of those events appears likely, although this saga has not yet ended.
By and large, the Gonzales hearings had few surprises. But the few that did occur were quite telling: There was a stunning lack of Republican support for Gonzales on the Judiciary Committee, and there was a remarkable change in White House procedures for contacts with the Department of Justice.
What was not surprising, however, was Gonzales’s determination to stay in the job and Bush’s disinclination to remove him—for this is consistent with the GOP presidential standard. Let’s look at each of these features of the hearings, in turn.
The Striking Lack of Republican Support for Gonzales
There are nineteen members of the Senate Judiciary Committee, ten Democrats and nine Republicans. Based on the conduct displayed during the Gonzales hearing it appears that the Attorney General has the support of only two Republicans: Senator Orrin Hatch (R.UT), who tried repeatedly to rehabilitate Gonzales during the hearings; and Senator John Cornyn (R.TX), who sought to protect fellow Texan Gonzales. Both Hatch and Cornyn are hardcore conservatives.
Running throughout the questions were statements relating to Gonzales’s competence. In the afternoon session, Senator [Tom] Coburn (R.OK) did not mince words: He made it clear that he had found that the Attorney General had acted with incompetence, and that he believed there must be consequences for Gonzales’s mistakes. Accordingly, in a striking fashion, he called for Gonzales to resign.
Even when Orrin Hatch tried to rehabilitate Gonzales, Hatch all but conceded the Attorney General’s incompetence, at least regarding the firing of the eight U.S. Attorneys. But Hatch tried—unsuccessfully—to balance that with vague statements as to all the good Gonzales has supposedly done.
Senator Arlen Specter said everything short of actually calling Gonzales a liar, for all of his conflicting statements about the handling of the dismissal of the U.S. Attorneys. In addition, Specter said while he would not call for Gonzales to resign, he strongly suggested that he do just that, and that if he did not, the President should send Gonzales back to Texas.
The lack of GOP support for Gonzales is not good for the White House, which needs all the friends it can find, now that the Democrats control Congress and they are undertaking their responsibility to conduct oversight. Having an attorney general with zero clout on Capitol Hill—which is now the case for Gonzales—leaves the White House all the more exposed.
Senator Whitehouse’s Evidence of Radical Changes to White House Procedures for Contacts with the Department of Justice
Senator Charles Schumer (D.NY) toward the end of the proceeding told Gonzales that his continued evasive answers—there were over 100 questions to which he claimed he could not recall the answer—left a clear impression on the senator: Since no one in the Department of Justice could explain how some of the names got on the list of U.S. Attorneys to be fired, he could only conclude that this must have been a White House-orchestrated operation. I think this fact has become clear.
Some of the most important and revealing information during this hearing did not come from Gonzales, but rather from the newest member of the committee, freshman Senator Sheldon Whitehouse (D.RI). Senator Whitehouse is the former Attorney General of Rhode Island, and a former U.S. Attorney. He thus understands well how the Justice Department should operate, and how it actually is operating.
In a premise to a question for Gonzales, Senator Whitehouse said he had found correspondence in the files of the Senate Judiciary Committee from the days when Orrin Hatch was chairman relating to an investigation of the relationship between the Clinton White House and the Justice Department (under Attorney General Janet Reno). Hatch was concerned about the independence of the Department of Justice, so he wanted to know who in the White House could speak with whom in the Justice Department. The correspondence showed that four people in the White House (the President, Vice President, chief of staff, and White House counsel) could speak with three people in the Justice Department (the Attorney General, the Deputy Attorney and the Associate Attorney General)—period.
Senator Whitehouse discovered—and created a chart to make the point—that in the Bush White House, a shocking 417 people could speak with 30 different people in the Justice Department. It was a jaw-dropper. As Chairman Leahy said, when he asked Senator Whitehouse to continue when his time expired, in his thirty years on the Judiciary Committee, he had never seen anything like the open contacts from the White House to the Justice Department that had occurred in the Bush Administration.
Gonzales really had no response when asked about this subject. But this information shows that, in this Administration, the Department of Justice has become a mere political appendage of the White House. (I have a number of friends who are career professionals at the Department of Justice, and since Gonzales arrived, they have said that morale at the department has tanked, for they all feel the politicization of the place, and they do not like it. Many of these gifted, experienced professionals are leaving, which will hurt the Department, the government, and ultimately all of us.)
The GOP Presidential Standard for Protecting Cronies: Why Gonzales Won’t Be Fired, Despite Not Being Up to the Job
Gonzales’s testimony had to leave all listeners—that is, all but the blindly partisan, to whom denial is second nature—with the understanding that he is simply not up to the job. While Gonzales all but concedes the incompetence with which the removal of the U.S. Attorneys occurred, he somehow seems to think he has all else under control. Yet he could not even competently explain what had happened to these federal prosecutors he fired, or why they were fired.
Notwithstanding the lack of support Gonzales has in the Congress, and the damage he is causing the Bush Administration, he is not going to resign, and Bush is not going to fire him. Rather, Bush is going to, in effect, create a new, and far lower, standard for acceptable conduct by attorneys general. Bush is openly embracing the “Peter Principle”—the management theory that says that, as people within an organization advance to their highest level of competence, they will then be further promoted to, and remain at, a level at which they are incompetent. This has clearly occurred with Alberto Gonzales.
I have varying degrees of knowledge about virtually all of the modern Attorneys General, or those who have served over the past five decades—the seventeen men and one woman who preceded Gonzales in the office he now occupies. They were all highly competent and able people. I cannot recall, nor find any evidence, that Congress ever questioned the competence of any of these former attorneys general. While Congress did not always agree with their policy decisions, no one thought these prior attorneys general were out of their league, or that they were damaging the Justice Department by their inept management.
As a former Department of Justice official, I find what Bush and Gonzales are doing to this once proud and independent department quite sad.