Marisa Katz for The New Republic, 11/21/2004

New Republic
Thursday 18 November 2004

Alberto Gonzales won't officially be confirmed as the next Attorney General until after the administration shifts over in January. But for all intents and purposes, the confirmation process wrapped up yesterday when Patrick Leahy, the ranking Democrat on the Senate Judiciary Committee - and therefore the biggest potential obstacle to Gonzales's confirmation - offered his endorsement.

"I like him," the Vermont senator told The New York Times (as if he were talking about a new neighbor in Montpelier). "I said jokingly that the president, with the majority he has in the Senate, could have sent up Attila the Hun and got him confirmed," Leahy continued. "But Judge Gonzales is no Attila the Hun: He's far from that, and he's a more uniting figure."

John Ashcroft wasn't Attila the Hun either. But for many critics of the Bush administration, he was the most visible and polarizing symbol of conservative excesses these past four years. Even the administration's most vocal detractors would have been happy with anybody else as attorney general in Bush's second term.

That the nominee is a man whose record shows him to be a moderate on social issues such as abortion and affirmative action has apparently left Leahy and his Democratic colleagues marveling at their good fortune. "I think he's a pretty solid guy," Delaware's Joe Biden said last week after Bush announced the appointment.

"If you had said to me six months ago I can have Gonzales or Ashcroft, it wouldn't have been a hard choice." New York's Chuck Schumer concurred that Gonzales was a far more amiable choice than his predecessor. "There's a feeling that Gonzales is less confrontational than John Ashcroft and he at least tries to reach out," Schumer said. "His style is not to throw down the gauntlet. So the White House has taken a step back from the red-hot confrontation that Ashcroft embodied."

Senate Democrats seem so relieved to be rid of Ashcroft that they have blinded themselves to the likelihood that Gonzales could be - well, worse. For one thing, there is reason to believe he will be just as conservative as Ashcroft. For another, his preference for keeping a low profile could very well make him more damaging to the justice system.

It's true that when Gonzales's name has been floated as a possibility for a future vacancy on the U.S. Supreme Court, conservatives have balked, citing his moderate-to-liberal stands on social issues during his time on the Texas Supreme Court.

But more relevant is Gonzales's work in the White House, where he showed himself to be supremely loyal to Bush and to the conservative cause. Gonzales filled his office with former Scalia and Thomas clerks. He recommended the most conservative federal judgeship nominees of any recent administration. And he has been a willing accomplice in the administration's violation of civil liberties in the name of fighting terrorism.

If, indeed, as some Republicans close to the White House suggest, Gonzales's attorney-general stint is intended to shore up his conservative credentials in advance of his nomination to the Supreme Court, this rightward tilt would likely become even more pronounced at Justice.

But he would probably be pretty quiet about it. Unlike Ashcroft, who approached the job like a politician - making himself a public spokesman for the war on terrorism and touring the country last year in defense of the Patriot Act - Gonzales usually likes to lay low. His office went to great lengths these past four years to protect the White House from scrutiny. Most notably, he refused a request from the Government Accountability Office to disclose who met with Vice President Cheney to offer input on the administration's energy policy. (By coincidence, Gonzales's old Houston law firm represented Enron.) He also drafted an executive order giving the president unprecedented power to withhold the records of past presidents and their aides. (Significantly, that includes the papers of Bush's father and many people working in the highest levels of the administration.)

This penchant for secrecy prompted alarm among even long-time legislators - Leahy prominent among them. "Since I've been here, I have never known an administration that is more difficult to get information from," he complained to The New York Times last year. To be sure, Ashcroft's Justice Department wasn't big on transparency or accountability. But at least Ashcroft's confrontational, in-your-face style provided some sense of what he was up to. Gonzales would likely be much harder to keep tabs on.

That's particularly dangerous in light of what he has already done, and could continue to do, to undermine our justice system.

Gonzales was a chief architect of Bush's executive order establishing the disastrous Guantnamo Bay military commissions - on hold since last week when a federal judge ruled that they don't meet United States standards of justice.

He helped craft legal arguments that "enemy combatants," as designated by the president, could be held without the right to challenge their detention. The Supreme Court determined that claim unconstitutional earlier this year.

And, of course, there's that pesky memo to the president in which Gonzales cast aside the Geneva Conventions as "obsolete" and "quaint" - and set the stage for the abuses at Abu Ghraib.

Leahy and the Senate Judiciary Committee's other Democrats should be viewing the Gonzales confirmation hearings as their best chance to hold the man - and, by proxy, the administration - to account on these issues.

How far does Gonzales see the Constitution extending executive power?

What role does he see for congressional oversight?

In retrospect, does he regret his decision to discount warnings by the State Department and career military officers that jettisoning the Geneva Convention could undermine the military's culture of respect for legal standards?

Leahy has acknowledged that serious questions must be asked. But he should also know that, as long as he keeps suggesting he's going to confirm the guy, serious answers won't be forthcoming.

Marisa Katz is an assistant editor at TNR.

For Worse
By Marisa Katz
The New Republic

Thursday 18 November 2004

Alberto Gonzales won't officially be confirmed as the next Attorney General until after the administration shifts over in January. But for all intents and purposes, the confirmation process wrapped up yesterday when Patrick Leahy, the ranking Democrat on the Senate Judiciary Committee - and therefore the biggest potential obstacle to Gonzales's confirmation - offered his endorsement.

"I like him," the Vermont senator told The New York Times (as if he were talking about a new neighbor in Montpelier). "I said jokingly that the president, with the majority he has in the Senate, could have sent up Attila the Hun and got him confirmed," Leahy continued. "But Judge Gonzales is no Attila the Hun: He's far from that, and he's a more uniting figure."

John Ashcroft wasn't Attila the Hun either. But for many critics of the Bush administration, he was the most visible and polarizing symbol of conservative excesses these past four years. Even the administration's most vocal detractors would have been happy with anybody else as attorney general in Bush's second term.

That the nominee is a man whose record shows him to be a moderate on social issues such as abortion and affirmative action has apparently left Leahy and his Democratic colleagues marveling at their good fortune. "I think he's a pretty solid guy," Delaware's Joe Biden said last week after Bush announced the appointment.

"If you had said to me six months ago I can have Gonzales or Ashcroft, it wouldn't have been a hard choice." New York's Chuck Schumer concurred that Gonzales was a far more amiable choice than his predecessor. "There's a feeling that Gonzales is less confrontational than John Ashcroft and he at least tries to reach out," Schumer said. "His style is not to throw down the gauntlet. So the White House has taken a step back from the red-hot confrontation that Ashcroft embodied."

Senate Democrats seem so relieved to be rid of Ashcroft that they have blinded themselves to the likelihood that Gonzales could be - well, worse. For one thing, there is reason to believe he will be just as conservative as Ashcroft. For another, his preference for keeping a low profile could very well make him more damaging to the justice system.

It's true that when Gonzales's name has been floated as a possibility for a future vacancy on the U.S. Supreme Court, conservatives have balked, citing his moderate-to-liberal stands on social issues during his time on the Texas Supreme Court.

But more relevant is Gonzales's work in the White House, where he showed himself to be supremely loyal to Bush and to the conservative cause. Gonzales filled his office with former Scalia and Thomas clerks. He recommended the most conservative federal judgeship nominees of any recent administration. And he has been a willing accomplice in the administration's violation of civil liberties in the name of fighting terrorism.

If, indeed, as some Republicans close to the White House suggest, Gonzales's attorney-general stint is intended to shore up his conservative credentials in advance of his nomination to the Supreme Court, this rightward tilt would likely become even more pronounced at Justice.

But he would probably be pretty quiet about it. Unlike Ashcroft, who approached the job like a politician - making himself a public spokesman for the war on terrorism and touring the country last year in defense of the Patriot Act - Gonzales usually likes to lay low. His office went to great lengths these past four years to protect the White House from scrutiny. Most notably, he refused a request from the Government Accountability Office to disclose who met with Vice President Cheney to offer input on the administration's energy policy. (By coincidence, Gonzales's old Houston law firm represented Enron.) He also drafted an executive order giving the president unprecedented power to withhold the records of past presidents and their aides. (Significantly, that includes the papers of Bush's father and many people working in the highest levels of the administration.)

This penchant for secrecy prompted alarm among even long-time legislators - Leahy prominent among them. "Since I've been here, I have never known an administration that is more difficult to get information from," he complained to The New York Times last year. To be sure, Ashcroft's Justice Department wasn't big on transparency or accountability. But at least Ashcroft's confrontational, in-your-face style provided some sense of what he was up to. Gonzales would likely be much harder to keep tabs on.

That's particularly dangerous in light of what he has already done, and could continue to do, to undermine our justice system.

Gonzales was a chief architect of Bush's executive order establishing the disastrous Guantnamo Bay military commissions - on hold since last week when a federal judge ruled that they don't meet United States standards of justice.

He helped craft legal arguments that "enemy combatants," as designated by the president, could be held without the right to challenge their detention. The Supreme Court determined that claim unconstitutional earlier this year.

And, of course, there's that pesky memo to the president in which Gonzales cast aside the Geneva Conventions as "obsolete" and "quaint" - and set the stage for the abuses at Abu Ghraib.

Leahy and the Senate Judiciary Committee's other Democrats should be viewing the Gonzales confirmation hearings as their best chance to hold the man - and, by proxy, the administration - to account on these issues.

How far does Gonzales see the Constitution extending executive power?

What role does he see for congressional oversight?

In retrospect, does he regret his decision to discount warnings by the State Department and career military officers that jettisoning the Geneva Convention could undermine the military's culture of respect for legal standards?

Leahy has acknowledged that serious questions must be asked. But he should also know that, as long as he keeps suggesting he's going to confirm the guy, serious answers won't be forthcoming.

Marisa Katz is an assistant editor at TNR.