Two of the more interesting and potentially confirmable of the nearly dozen names floated to replace Alberto Gonzales as U.S. attorney general are Solicitor General Paul D. Clement and retired New York federal judge Michael Mukasey.
Clement’s agreement to step in as acting U.S. attorney general until a permanent replacement can be found does not give him an inside track to get the job, according to Rachel Barkow, criminal law professor at New York University Law School.
“It would be hard to object to him, he is smart and well-liked, but why would he want the job,” said Barkow, criminal law professor at New York University Law School.
Senator Charles Schumer, D-N.Y, likely floated Mukasey, who left the federal bench last year to re-join Patterson Belknap Webb & Tyler.
“Actually, Schumer’s recommendation might have a lot of weight,” said Laurie L. Levenson, Loyola University School of Law professor. “He was active behind the scenes in the hearings on the U.S. attorney firings. “If Schumer’s people are putting up that name it should not be quickly disregarded,” she said.
Mukasey was appointed to the bench in 1988 by President Reagan. He presided over the terrorist trial of Sheik Omar Abdel Rahman and the case of Jose Padilla, held as an enemy combatant by the U.S.
Another name to be considered on potential short lists is Chris Cox, chair of the Securities & Exchange Commission and former congressman.
Clement clerked for Supreme Court Justice Antonin Scalia and D.C. Circuit Judge Laurence Silberman and has been solicitor general since March 2005.
Other names were more easily knocked down. Former 4th Circuit Judge Michael Luttig, now general counsel at Boeing Corp. for one. “Oh God, not a chance. He is such an ideologue. He won’t get it for the same reason he isn’t on the Supreme Court,” said Levenson. “He’s not confirmable.”
Michael Chertoff, head of the Department of Homeland Security and a former judge, night not be the right choice. “If you asked me two years ago I’d say absolutely yes, but in the aftermath of Hurricane Katrina some have focused on his role,” said Michael Dorf, law professor Columbia University School of Law.
Observers also expressed reticence about chances for special prosecutor Patrick Fitzgerald and James Comey, former deputy attorney general and now general counsel of Lockheed Martin.
Fitzgerald prosecuted for obstruction of justice Lewis “Scooter” Libby, vice president Dick Cheney’s chief of staff. “He’d be going from the administration’s hit list to the attorney general list. Not a chance,” said Levenson.
Comey, because of his criticism of Gonzales over wiretapping issues, was an unlikely choice. “He would not be seen as loyal enough for the administration,” Barkow said.
Silberman, a member of the D.C. Circuit, would be in the category of elder statesman and supported by Republicans.
Former deputy attorney general Larry Thompson, now general counsel at PepsiCo, would add diversity �� he is African-American � and has experience at the top of the department. Several observers questioned whether he would want the job and he would face criticism for the 2003 Thompson Memo that was widely criticized as leading to prosecutorial excesses in white-collar cases.