An article by Philip Shenon and David Johnston in yesterday's New York Times, reported that the Bush Administration is close to naming a replacement for Alberto Gonzales as Attorney General, and that the leading candidates are Ted Olson and George Terwilliger.
Because of Olson's Partisan political past, numerous progressives voiced anger at this revelation, and Harry Reid made the blunt statement that he would do everything he could "to prevent [Olson] from being confirmed as the next attorney general."
Today the NY Times editorial page adds another opinion opposing Ted Olson.
I suggest these responses were predictable, predicted and instigated by an intentional Bush Administration leak aimed at softening the political landscape for their actual nominee.
As Emptywheel notes at TNH, David Johnston has a history of being susceptible to Administration leaks and spin. Furthermore, a WaPo reporter, Mike Allen, reported that Olson was one of several names considered for AG, not the front-runner as suggested by Johnston.
My suspicion is that clearly contentious names are being floated by the Administration for the explicit purpose of exercising the Dems. By leaking a potentially controversial nominee, Bush gets the Democratic leadership, liberal bloggers and editorial pages to waste energy and acrimony over the false selection. This mobilizes opposition effort toward the false nominee, and allows the Administration to paint the nomination environment as obstructionist.
There was no doubt a softened nomination environment after the Harriet Miers Fiasco, which may have helped pass Alito through to the Supreme Court. Now the Administration may be deliberately exploiting an analogous situation: They may have leaked Chertoff's name, and now Olson's, as a feint to slip a desired nominee by the Democratic gatekeepers. The #2 candidate revealed by Johnston, George Terwilliger, shares the same Partisan issues as Olson, and is another nonstarter.
The Solution
The solution to this ploy is simple- Offense, not Defense. Reid and other Democrats should not comment upon or respond to leaked names of nominees publicly until the official nominee is presented to the SJC.
They should adopt a hard line stance- insisting that no nominee for AG, even if it is Patrick Fitzgerald or Bill Clinton, will be considered by the SJC unless the following conditions are met:
- Appointment of a Special Prosecutor to investigate the DOJ scandals, with a broad mandate to investigate prosecutor firings, Hatch Act violations, politicization of prosecutions, and reauthorization of the Warrantless Wiretapping Program despite OLC and DOJ refusal to approve the program.
- Resolution of executive privilege claims to provide documents and sworn testimony of Administration personnel (Rove, Miers, Taylor, Jennings, Bolton) regarding the DOJ scandals to Congress or a Special Prosecutor.
This stance will satisfy the Progressive base and release Senate Democrats from the obligation of commenting upon every name floated by the Administration. With respect to Advice and Consent, the Senate Democratic majority owns Constitutional Power. They should behave as if they understand and embrace this obligation, and wield their power to right the wrongs that have been perpetrated by this Administration. They must not again fall prey to Bush Administration political tricks. If the nomination environment is going to be painted as "obstructionist", Democrats should ensure that it is meaningfully obstructionist.
In short, stop the defensive anger over probably fake AG nominees, and focus on the offensive Power Senate Democrats wield- the ability to define the rules of Advice and Consent on the AG replacement.
And one last thing: No more recesses until Bush is out of office. Someone should stay in Washington and Bang the Gavel every day through Winter 2007 and Summer 2008 to preclude recess appointments.