NEW YORK (JTA) – What qualities should President Bush seek in a successor to Attorney General Alberto Gonzales?
Should he appoint someone willing to enforce existing law without partisan consideration, or should he appoint someone who sees his job as being the president’s lawyer and an advocate for the president’s policies no matter how doubtful, legal or imprudent?
The easy answer – that the attorney general should be a wholly nonpartisan guardian of the law – has much to commend it. But like most simple answers, it is too simple. The examples of the attorneys general under President Franklin Roosevelt show the complexities of the role of the nation’s chief lawyer.
A fair-minded lawyer looking at much of Roosevelt’s early New Deal legislation would have to have known that much of it was unconstitutional under existing Supreme Court decisions. Should the attorney general have advised Roosevelt not to press on and resigned if he ignored the advice?
Later, in Roosevelt’s second term, Attorney General Robert Jackson wrote an opinion justifying broad presidential powers over foreign affairs and national defense, including Roosevelt’s lend lease program, seen as crucial to England’s ability to stave off a German invasion. Ironically, a little more than a decade later, Jackson as a member of the Supreme Court authored an opinion rejecting such broad presidential powers.
Noting the discrepancy, he remarked that things looked different from the court. Should Attorney General Jackson have reached the same legal conclusion as Justice Jackson? History teaches it is fortunate that he did not.
But while an attorney general must be an advocate for the president who is willing to challenge existing legal understandings, as was Jackson, the American people also expect the nation’s top lawyer to be a guardian of the law, assuring them that the government is restrained by existing law and that the law is enforced evenhandedly.
In other words, in being an advocate for the president – and here is where Gonzales has fallen short – the attorney general must not be dismissive of the law that inconveniently constrains his client.
The president may want to pursue a policy that existing law forbids – and it is then, as guardian of the law, that the attorney general must tell his client that her preferred course of action is out of bounds. As an advocate for that same client, the attorney general must seek to press the law as far it will go – sometimes further – to further the client’s programs.
Those who urge the nomination of an attorney general above politics imprudently seek to decouple law and politics. They assume that the law is, to use Justice Oliver Wendell Holmes’ marvelous phrase, a brooding omnipresence in the sky, readily ascertained by anyone.
In guiding the development of policies against terrorism, for example, the attorney general must consider how to balance the duty to protect civil liberties and the need to devise effective tactics against terror. He must not only give adequate attention to both but assure the public, as Gonzalez did not, that both are being attended to by the government.
Civil rights and civil liberties are important elements of democratic governance, but they are assuredly not self-defining. Which policy better advances civil rights, one that allows race-based college admissions or one that forbids it? What exactly is the appropriate line between unreasonable searches and preventing terrorism?
Neither of these questions – or questions about the division of power between Congress and the president – comes to an attorney general on a blank legal slate. Nevertheless, often there are no evident answers.
It is appropriate that open choices about law should in the first instance be made through the political process. That process must recognize, however, that the success of the democratic enterprise depends not only on presidential policies addressing today’s crisis but on a long-term commitment to civil liberties and equal justice under law.
Truth be told, lawyers commonly face the same dilemma as the attorney general. Every experienced lawyer has told a client that while the law leaves open the possibility that a course of conduct is legal and that it is impossible to tell in advance how the courts will rule, prevailing will come at too high a cost to reputation or other principles that the client – or the society as a whole – value. In such a case, the client would be well advised not to pursue a course bringing short-term advantage.
Other times, an attorney will advise that the law is clear that a course of action is currently illegal but that there is good reason to force a re-examination.
Clients often are unhappy with such advice. More than one lawyer has been discharged for offering it. Some lawyers refuse to represent a client pursuing a course that they believe is seriously wrong. Others have forced significant change on the legal system by challenging settled law.
Lawyers are legal professionals, not philosopher kings, serving as moral gatekeepers charged with second-guessing their clients. Lawyers are obligated, not merely permitted, to press a client’s interests.
There is no principled way to resolve the conflict between attorney general as guardian of the law and as presidential advocate, just as ordinary lawyers have no simple way to balance similar conflicts in advising their own clients. In the end it is a question of mature and informed judgment, of a willingness to say no – but equally a willingness to re-examine existing truths, and run the risk of being wrong and unpopular in pursuit of the client’s urgent policy choices.
The president and the nation will be well served if Bush nominates an attorney general who not only has the correct political views and requisite legal skills but also courage and good judgment – and then pays careful attention to his lawyer’s advice.
Marc D. Stern is the assistant executive director and general counsel of the American Jewish Congress.
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