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The Supreme Court vacancy left by Justice Sandra Day O’Connor poses a stark choice for President George W. Bush. Bush would certainly win approval from many for nominating Attorney General Alberto Gonzales, who would be the Court’s first Hispanic justice. At the same time, choosing Gonzales would clearly embitter elements of the Republican Party who view the attorney general as too liberal on such issues as abortion and affirmative action. But there’s another more practical consideration: The White House must also weigh the impact of displacing the nation’s attorney general after just six months on the job at a time when the department is on the brink of a major structural overhaul. As attorney general, Gonzales plays a central role in the administration’s efforts to prevent acts of terror on U.S. soil. Last week’s bombings in London are likely to serve as a powerful reminder to officials in Washington to maintain their focus on counterterrorism. While uprooting Gonzales from the Justice Department is unlikely to be a primary consideration for the president, it may make a difference at the margins, say former administration insiders. Further complicating matters, Deputy Attorney General James Comey has announced plans to step down in early September, and a confirmation hearing has not yet been scheduled for the administration’s chosen replacement, Tyco International General Counsel Timothy Flanigan. Meanwhile, the Criminal Division, the Civil Rights Division, the Environment and Natural Resources Division, the Antitrust Division, and the Office of Legal Counsel all lack permanent Senate-confirmed leaders. “It’s no question that’s something to think about,” says one former DOJ official, who asked to remain unidentified. “It’s hard enough to run the Justice Department with everyone installed. Without permanent leadership, the ship tends to drift a little bit.” The Supreme Court vacancy comes at a time when the Justice Department is engaged in multiple efforts key to its mission as a counterterror agency. On June 29 the White House endorsed a proposal that would consolidate the Justice Department’s national security components under the leadership of a new assistant attorney general. In addition to preparing for the structural reorganization, the department is deeply engaged in efforts to reauthorize parts of the USA Patriot Act set to expire at the end of the year. The department’s No. 3 official, Associate Attorney General Robert McCallum Jr., who would presumably take charge if there were simultaneous vacancies in the department’s two senior posts, faces congressional scrutiny for his role in the Justice Department’s decision to seek sharply reduced penalties in its lawsuit against the tobacco industry. “We could wind up with no attorney general, no deputy, an associate who is at the center of a political controversy, and a major reorganization that is mission critical for the department’s focus on national security,” says Bingham partner Nicholas Gess, a senior DOJ aide under President Bill Clinton. “Obviously, the president has to make an important choice — the U.S. Supreme Court versus upsetting the apple cart at the Justice Department.” If he is chosen, some analysts say that Gonzales’ high-profile political position and his long-standing personal relationship with the president could force him to recuse himself from key cases likely to come before the Supreme Court, including any appeal brought by detained enemy combatant Jose Padilla. During Gonzales’ tenure as White House counsel, he played a key role in establishing the administration’s legal policies related to prisoners in the war on terror. His views on the president’s power to indefinitely detain U.S. citizens as enemy combatants clash with those expressed by O’Connor in Hamdi v. Rumsfeld. O’Connor held that U.S. citizens, even those captured on the battlefield, must receive notice of the factual basis for their detention and be given the opportunity to challenge the government’s charges before a neutral decision-maker. In a February 2004 speech to the American Bar Association, Gonzales stated that captured enemy combatants may be detained for the duration of hostilities. “This detention is not an act of punishment but one of security and military necessity,” Gonzales said. “Nothing in the law of war has ever required a country to charge enemy combatants with crimes, provide them access to counsel, or allow them to challenge their detention in court.” Northwestern University School of Law professor Steven Lubet says Supreme Court justices have near total discretion when it comes to recusals and that Gonzales would not necessarily have to recuse himself from a large number of cases. “The only cases I think he would absolutely have to recuse himself from are cases where he had a personal and substantial involvement in the specific matter,” Lubet says. Gonzales would not be the first DOJ official nominated to the high court. Robert Jackson, appointed by President Franklin D. Roosevelt in 1941, served as attorney general immediately before his nomination. Chief Justice William Rehnquist was head of the DOJ Office of Legal Counsel before assuming a seat on the high court in 1972. During his first months on the Court, Rehnquist surprised Court observers by participating in Laird v. Tatum, a case that challenged the constitutionality of domestic spying by the military. Lawyers for civilian activists who had been the target of military surveillance asked Rehnquist to step aside because he had publicly expressed views on the merits of the case as a member of President Richard Nixon’s administration. Ultimately, Rehnquist cast the deciding vote in the case. “Since most Justices come to this bench no earlier than their middle years. . . it would be not merely unusual, but extraordinary, if they had not at least given opinions as to constitutional issues in their previous legal careers,” Rehnquist wrote in a memo explaining his decision not to recuse. “Proof that a Justice’s mind at the time he joined the Court was a complete tabula rasa . . . would be evidence of lack of qualification, not lack of bias.” In 1974 Congress amended the law to require federal judges to step aside in cases in which they participated as government officials or expressed opinions regarding the merits of a particular case.
Vanessa Blum can be contacted at [email protected].

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