Today Kmiec and Litman discuss the politics and constitutional issues of a Senate no-confidence vote. Yesterday they debated the attorney general's uncertain future, and tomorrow they will focus on the legal angles around the firing of U.S. attorneys.

More than just theater

Doug,

Today we focus our attention on the political sphere and the prospect that the Senate will pass a resolution of no confidence in Attorney General Alberto Gonzales. President Bush has dismissed the prospect as "pure political theater," and perhaps you agree. After all, the resolution can do nothing to change the constitutional allocation of power that you emphasized yesterday, which places removal authority firmly in the president's hands, however frustrating that might be to some senators.

The resolution could also be considered "political theater" in the related sense of mere posturing for political leverage, the political equivalent of a dramatic performance. Of course, the same can be said of the political maneuvers in defense of the attorney general, including the President's insistence after the attorney general's disastrous Senate testimony that "The attorney general went up and gave a very candid assessment...in a way that increased my confidence in his ability to do the job."

But theater in this sense comes with the territory. The attorney general is in a struggle for political survival, and his stewardship of the Department of Justice has produced a political crisis for the administration. Political crises produce political theater. Both the Senate leadership and the White House are feverishly trying to position themselves to maximize political advantage (or minimize political fallout). There is nothing anti-constitutional, or even novel, about this. Again we are, as I suggested yesterday, in overlapping spheres of constitutional authority and political prerogative.

Is the theater nevertheless at all meaningful or is it rather just so much strutting and fretting on the political stage? Let me answer the question on two levels, in the process getting back to my theme of the differences in institutional roles among the White House, the Senate, and the Department of Justice. On the level of political fortunes (where I am happy not to be an expert), I think it is somewhat meaningful, and a clever (and apparently unprecedented) stratagem on the part of the Senate Democrats. Its chief potency lies in forcing Senate Republicans to cast their lots, either deserting the Administration in an hour of need or putting their political accountability behind a greatly weakened attorney general who may well not survive anyway. (The Republican headcount is a sort of futures market on whether the attorney general can weather the storm.) It is not a choice they relish, and it is likely that some Republicans are imploring the White House to avert the vote by pulling the plug on the attorney general. But of course Gonzales has previously seemed to be at the verge of a Do Not Resuscitate order and remains in office, so who's to say if the resolution will be the coup de grâce?

But I'd like to focus on what the resolution signifies off the political stage, for the Department of Justice's real-world mission. Here the question is this: Should we in fact care if the Congress, or the public, has no confidence in the attorney general? The answer is yes, we should care greatly. Attorneys general of both parties typically have the confidence of Congress and the public, because they are perceived as carrying out their work in a nonpartisan and apolitical fashion. That public confidence in the sound administration of justice is the Department's most important, and fragile, asset.

That sounds pious—and in truth, like many people who served in the Department (probably you included), I feel the point in somewhat Capraesque terms—but it is a hugely practical point as well. The former deputy attorney general, James Comey—who has, I expect reluctantly, been effectively cast as the Anti-Gonzales in this drama, the picture of how a Senior Department Official should approach the job —put it very well in addressing the charge (which yesterday's testimony proved accurate) that DOJ hiring decisions were driven in part by partisan politics. "If that was going on, that strikes at the core of what the Department of Justice is... It deprives the department of its lifeblood, which is the ability to stand up and have juries of all stripes believe what you say and have sheriffs and judges and jailers—the people we deal with—trust the Department of Justice."

You wrote yesterday about the professionalism and conscientiousness of the men and women who serve under the attorney general. They are professional and conscientious. They are also the ones who have to persuade people in individual cases that the department enforces the law without fear or favor. By letting partisan politics infect the department's core function (not only in the firings of U.S. attorneys), and in his botched responses to the crisis, Gonzales has handed a club to anyone who wants to argue otherwise. It falls in large part to the career professionals to clean up the mess that Gonzales has made. The longer the scandal drags on, the longer and harder the eventual cleanup will be, and the more they will resent him for it. And that's not just theater.

Harry Litman is a former United States attorney and deputy assistant attorney general. He currently practices law and teaches at Rutgers University School of Law and Princeton University.
A no confidence vote in the separation of powers?

Harry,

You and I both wish this particular political theater were closed. There is a tenable case to be made, and you have largely and eloquently made it, that whether or not Attorney General Gonzales has engaged in wrongdoing (and I remain strongly of the view that he has not), it would be more noble or for the greater good of Justice and the rule of law if he would simply step aside.

Surely, it is the wish of every civil servant and presidential appointee to have the Department of Justice revered for integrity, competence and the evenhanded administration of law without fear or favor. My daughter, who is just a few years shy of Monica Goodling, graduated from law school last Friday. As Monica spoke, I saw in her the same idealism and nobility of desire to pursue the common good that I have witnessed in my own daughter. So I could well understand Alberto Gonzales, who is a good and decent man, following the path of least resistance and subordinating his personal offer of service to the unhappy, practical reality that his offer has been spurned.