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Sunday, September 02, 2007

Should a Professor Replace Gonzales for AG?

In today's Chicago Sun-Times, Prawfs Steve Lubet and Andrew Koppelman explain the case for nominating Prof. Steve Calabresi, their colleague at Northwestern University, to replace Alberto Gonzales.  Calabresi, for what it's worth, wasn't aware of this stealth campaign, but I'm sure he'll find out about it soon. Here's the crux of their argument, and some thoughts after the jump:

The last thing our faltering president wants or needs is to be turned down by a high-profile lawyer who prefers guaranteed mega-bucks to an uncertain stint in the Cabinet.  That really leaves only two viable categories: People already in the administration, and law professors.  Current administration officials, however capable or available they might be, would face serious problems in the Senate confirmation process. Homeland Security Secretary Michael Chertoff, for example, would have to answer pointed questions about internal security policies -- from warrantless wiretaps to the Kuwait ports fiasco. He also would be held accountable for the failure of immigration policy and the Hurricane Katrina cleanup debacle, both of which were poorly managed by his department. Even the most loyal Republicans would wince at the prospect of such a confirmation hearing dominated by hostile Democrats.

Thus, Bush's best bet for a quick confirmation is the nomination of a law professor -- someone with minimal political baggage and relative job flexibility. And, as it happens, we have a suggestion: our friend and colleague Professor Steven G. Calabresi, of the Northwestern University School of Law. Calabresi's conservative credentials are impeccable. A co-founder of the Federalist Society, he is the chairman of the organization's board of directors. He served in both the Reagan and first Bush administrations before joining the Northwestern faculty in 1990. He has since become one of the country's most influential Constitutional law scholars. His views concerning issues such as executive power and judicial restraint are generally in step with the Bush administration, but he also has been widely praised by liberals for his depth of knowledge and intellectual brilliance.

He is no doubt the most thoughtful scholarly proponent of the "unitary executive theory," having written many articles on the topic, including one often-cited piece in the Harvard Law Review. This theory of executive authority under the Constitution, which holds that Congress has no power to deprive the president of control over the execution of the laws, has been central to the Bush administration's definition of its own constitutional role.

No Bush appointee could be expected to depart from the unitary executive theory, but Calabresi understands it in a more sophisticated way -- as something other than an unrestrained grant of presidential power -- and is better able to recognize and explain constitutional limits than anyone now in the Justice Department.  Calabresi also would bring to the job unquestioned personal integrity. The Gonzales Justice Department appeared to exploit the power of prosecution for political gain; there is no possibility that Calabresi would repeat those errors. Today, trustworthiness is probably an even more important virtue than intellectual or political competence. Calabresi has all three virtues.  

Although he is a leading conservative theorist, no one would ever call Calabresi a partisan politician. He has been a consensus builder as a member of the Northwestern faculty, supporting colleagues across the political spectrum, and he would surely bring that same open-mindedness to the Justice Department. We have not discussed this idea with Steve (or with our dean, who would have to approve a leave of absence), but we think the logic of the proposal is compelling.

Just as the University of Chicago's Edward Levi restored confidence in the Justice Department under President Ford in the post-Watergate era, so could Northwestern's Steven Calabresi provide fresh leadership in the waning days of the Bush presidency. We don't have any inside information and we don't know whom President Bush is actually considering for attorney general, but we are certain that Steven Calabresi (or someone very much like him) provides a standard against which every potential nominee ought to be measured.

I've never met Professor Calabresi, but I think it speaks well of him that his colleagues are enthusiastic about his capabilities for such an important job.  Still, I wonder if Steve and Andy are correct that a professor is the way to go on this job on account of a) other Bush administration officials all facing difficulty getting past the Senate and b) other non-Admin candidates for the job, including Olson and Thompson, don't want to turn away from the lucre they're making now.  The Acting AG, Paul Clement, for one, is unlikely to face the kind of hostility that Chertoff might face (because of Katrina and DHS management) and he is also viewed as possessing sufficient decency, competence, and stature as SG that James Comey wanted Clement to accompany him to meet with Gonzales after the infamous hospital visit to Ashcroft. Moreover, other US Attorneys could ably fill the job of AG too, though they might not be part of the inner Bush sanctum sanctorum.  All that said, if Steve and Andy are right, then Calabresi might have the right stuff to restore credibility to the AG's office.

What do readers think? Should Bush look to a  prawf or dean for help? Any nominations of your own?

Posted by Administrators on September 2, 2007 at 04:06 PM in Law and Politics | Permalink


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Tracked on Sep 3, 2007 9:38:43 AM


I wouldn't have put it quite so strongly, but DCuser's comment is roughly the concern I thought of reading this. I wouldn't put it quite so strongly because I'm not by any means sure, but my instinct would be that the AG's job is primarily running DoJ, not thinking great and profound thoughts about law, and it doesn't seem to me that it follows that a great legal thinker is necessarily going to have the skillset required for that role. Of course, I could be wrong about that, or in any event, Calabresi might well have that skillset. But while I've greatly enjoyed Calabresi's scholarship, and honestly, I think he's quite possibly the only candidate who springs to mindas a possible successor to Scalia in a decade or two (you know, or whenever), I'd hesitate to say he's necessarily therefore a great fit for AG.

Posted by: Simon | Sep 3, 2007 7:35:24 PM

In a way, Professors Lubet's and Koppelman's suggestions of Prof. Calabresi just goes to show how out of touch law professors are with the real world.

DOJ is an enormous organization -- it has around 120,000 employees, and a budget of around $25 billion. http://www.usdoj.gov/jmd/budgetsummary/btd/1975_2002/2002/html/page18-21.htm
The Attorney General not only must manage that enormous colosus, but must also negotiate difficult relations between federal and state law enforcement.

In addition, of course, the AG is the nation's top prosecutor -- responsible for setting the climate and rules that will govern prosecutors and investigators pursuing thousands of crimes.

The key skills for an AG, then, are not legal brilliance, but managerial excellence and prosecutorial judgment.

Ashcroft and Thornburgh at least had experience running attorney generals' offices at the state level. Reno did for a large county. Their managerial experience didn't match the scope of what the AG is required to do -- but at least they'd had some experience in running large offices. And, of course, they all had prosecutorial experience as well.

Even Ed Levi (the last AG I can think of appointed from the academy), though he may not have been an experienced prosecutor, had been dean of a major law school -- not just a professor. He therefore had some record showing administrative skills and leadership.

Steve Calabresi may be a very smart and fine gentleman, but he is simply lacking in these crucial skills. The fact that his law professor colleagues don't see that points out, to my mind, the cliched (but true) observation about the academy's distance from real life.

Posted by: dcuser | Sep 3, 2007 3:19:52 PM

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