When the White House floated the name of former Solicitor General Ted Olson as the president's preferred replacement for scandal-plagued Attorney General Alberto Gonzales, it was a poke in the eye to responsible members the Senate Judiciary Committee who were pressing for a nominee capable of rebuilding the Justice Department Gonzales had effectively destroyed.

Olson might have been an abler lawyer than the outgoing Attorney General. But the man who led the scheming to get the Supreme Court to prevent an honest recount of Florida presidential votes in 2000 is, if anything, more fiercely partisan and ideologically driven than Gonzales.

With the Justice Department in crisis as a result of instability caused by the politically-motivated firings of key U.S. attorneys, resignations of top-level managers, an exodus of career lawyers and revelations about crude political meddling with the mission of the civil rights division, the idea of putting a committed ideologue like Olson in charge was not merely offensive but frightening to Democratic and Republican senators who take seriously their oversight role.

Members of the Judiciary Committee made it clear, publicly and privately, that Olson would face a fight. Judiciary Committee chairman Patrick Leahy, D-Vermont, began to define the terms of what would have been the first serious confirmation battle of the Bush presidency -- with the word "serious" being defined not by the passions involved but the prospect that the White House might not prevail.

Leahy and other key Democrats on the Judiciary Committee, particularly New York's Chuck Schumer, believed they could defeat Olson's nomination at the committee level with a coalition of Democrats and Republicans who are genuinely worried about the crisis at Judiciary, such as Pennsylvania's Arlen Specter. Even if the nomination got out of committee on a tie vote, Schumer believed that Republicans who are worried about getting reelected in 2008, such as Maine's Susan Collins and Minnesota's Norm Coleman, would join Democrats in rejecting Olson.

After surveying the chamber, Senate Majority Leader Harry Reid announced last week that Olsen would not be confirmed.

The Republican National Committee issued statements grumbling about how: "Dems Try To Choose Bush's Attorney General." Right-wing talk radio geared up for a fight.

But the White House was looking at the same Senate as Reid. And late last week, it appears, the president and his aides blinked.

Olson's name was put back in the drawer. Instead, Bush has nominated former Federal Judge Michael B. Mukasey, a veteran prosecutor from New York who has close ties to former New York Mayor Rudy Guiliani but few links to the Bush White House, as third attorney general.

Mukasey is no liberal. He should tough questioning by the Senate -- especially with regard to his past cheerleading for the Patriot Act. But he will also be remembered as the jurist who in 2003 agreed with lawyers for Jose Padilla that an appeal in the case of the accused terrorist could examine the legality of Bush's designation of Padilla as an enemy combatant.

That show of independence, while it came in the context of an overall record of relatively conservative decisions in cases involving Constitutional questions, will sit well with moderate senators who are concerned that the next Attorney General be a competent lawyer rather than a presidential acolyte or an ideological activist.

As Schumer said Sunday, "While he is certainly conservative, Judge Mukasey seems to be the kind of nominee who would put rule of law first and show independence from the White House, our most important criteria. For sure we'd want to ascertain his approach on such important and sensitive issues as wiretapping and the appointment of U.S. attorneys, but he's a lot better than some of the other names mentioned and he has the potential to become a consensus nominee."

Translation: Mukasey's not a perfect pick, and perhaps not even an acceptable selection. But he is a better nominee than Ted Olson, if only because his background suggests that he might take seriously the fundamental task of restoring the Department of Justice.

So there will be no nomination of Olson, and no formal vote by the Judiciary Committee or the full Senate to confirm the most ardent champion of the right-wing Federalist Society's campaign to warp the federal judiciary and the nation's law-enforcement apparatus.

But no one should mistake what has happened: Olson has been blocked by the Senate. That is good news for the Justice Department, for the rule of law and for the Republic. It is, as well, a welcome indication that the system of checks and balances might yet be restored to a proper equilibrium. Hopefully, that restoration will continue with a thorough examination of Mukasey's nomination that will recognize his superiority to Olson while still seeking assurances of his commitment both to cleaning up the mess made by Alberto Gonzales and, most importantly, standing up where necessary to the White House's assaults on the Justice Department and the rule of law.

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John Nichols' new book is THE GENIUS OF IMPEACHMENT: The Founders' Cure for Royalism. Rolling Stone's Tim Dickinson hails it as a "nervy, acerbic, passionately argued history-cum-polemic [that] combines a rich examination of the parliamentary roots and past use of the 'heroic medicine' that is impeachment with a call for Democratic leaders to 'reclaim and reuse the most vital tool handed to us by the founders for the defense of our most basic liberties.'"

Comments (14)

1. of course they dont want to put an honest man in the job. he'd have to prosecute them...

   Posted by ibbleblibble at 09/16/2007 @ 11:13pm

2. As famously stated in the movie Casablanca:

   "I am shocked, shocked to learn that there is gambling here!"

   For Nichols, Democrats, and some Republicans to express outrage that a partisan might be nominated for the position of AG is disingenuous and in the case of Nichols and the Dems is purely partisan on the opposing side.

   AG's have nearly always been highly partisan appointments (think Bobby Kennedy). When criticized for that selection, JFK replied "the kid has to start somewhere."

   The following link has the complete list of AG's and their brief bio's. It demonstrates clearly that partisanship in an AG is the norm, not the exception.

   http://www.usdoj.gov/jmd/ls/agbiographies.htm

   And note this historical reference from Lamar Alexander on how the system really works. He is speaking in reference to the firing of the US attorneys, but the lesson applies quite well.

   In the summer of 1963, in between my first and second year at New York University Law School, I worked in Attorney General Robert Kennedy's office as an intern. I was so impressed that, after graduation, I drove to Chattanooga to apply for a job as an Assistant U.S. Attorney. The interview went fine until the U.S. Attorney for the Eastern District of Tennessee asked about my politics.

   "I'm a Republican," I said. "Sorry," he said, "We only hire Democrats." "But the Attorney General said the administration of justice was non-partisan," I replied. "That word hasn't gotten down here," the U.S. Attorney said.

   Posted by lvliberty1 at 09/17/2007 @ 03:40am

3. Posted by LVLIBERTY1 09/17/2007 @ 03:40am

   thanks for the link.

   i find it interesting that nixon went through four AGs.

   Posted by frosty zoom at 09/17/2007 @ 08:20am

4. The Old Robert Gates For Sec. Of Defense Trick, Chief!

   Actually not much of a trick. Like Gates, they've picked a guy that Dems will easily confirm (Schumer loves the guy), but the policies will continue.

   Look at the Gates example....fired Rummy and got a guy who was easily confirmed...and then we got the Surge.

   Mukasey may SOUND "moderate", but not exactly sure what Mr Nichols is rah-rah cheering about. Just more White House rope-a-dope.

   Posted by Mask at 09/17/2007 @ 08:51am

5. Good reassuring info, Mr. Nichols. Thank you.

   And Rese, is there a missing thermonuclear device gone or unaccounted for, from the United States' bloated arsenal or not? I ask because, thank heavens, there was no Holocaust-like mass murder on 9/14 as you'd mentioned as being a possibility connected in some way with the nuke bombs erroneously loaded and flown to Arkansas last week.

   Posted by lewwelge at 09/17/2007 @ 09:09am

6. Lotta blanks...lemme guess...

   RESE has "inside information" that Michael Mukasey was seen bringing "heavy bags" into Building 7 on 9/11???

   heheh

   Posted by Mask at 09/17/2007 @ 10:16am

7. Posted by LVLIBERTY1 09/17/2007 @ 03:40am | ignore this person

   tis has been clear from the start. that is why presidents usually replace them all when control of the white house changes parties.

   this is however very different from selectively firing those who do not pursue party line justice.

   Posted by johannesrolf at 09/17/2007 @ 11:17am

8. Liberty -

   Something out of nothing. Nobody seems "outraged" to me. No problem with Bush nominating a conservative - see Shumer's comment. The quite obvious problem with Olsen, however, is that after suffering through an AG as blindly devoted to the WH as Gonzales was, nominating Bush's old lawyer from 2000 kinda smelled like a bad idea.

   p.s. I went to your link. The scant bios hardly reveal how "partisan" each was. But, I am not sure what you are driving at here. That Presdients typically nominate those affiliated with their party is not controversial.

   Posted by Hman23 at 09/17/2007 @ 1:42pm

9. Uh-oh, Liberty -

   "His federal judicial record has been at times hostile to the issues that we care and have concern about, like abortion," Brian Burch, president of the Catholic-based advocacy group Fidelis told the Associated Press.

   Posted by Hman23 at 09/17/2007 @ 2:03pm

10. p.s. I went to your link. The scant bios hardly reveal how "partisan" each was. But, I am not sure what you are driving at here. That Presdients typically nominate those affiliated with their party is not controversial.

    Posted by HMAN23 09/17/2007 @ 1:42pm

    HM,

    That is precisely my point about the hyperbole of Nichols and the Democrats. It is the normative for Presidents to make partisan choices for cabinet officers. For Nichols and the Dems to suggest that Bush is operating outside of the norm is disingenuous on their part as I previousl stated.

    BTW, the link shows that nearly all of the AG's came out of the presidents party. Some were from the Party's national committee, some members of the House and/or Senate.

    Posted by lvliberty1 at 09/17/2007 @ 2:23pm

11. Posted by HMAN23 09/17/2007 @ 2:03pm

    People on both sides will be looking for ways to create a political issue over this nomination. At the end of the day, most in the Senate and elsewhere will treat it appropriately. It is a caretaker appointment to finish out Bush's term in office.

    Posted by lvliberty1 at 09/17/2007 @ 2:25pm

12. ours is a caretaker gov't to finish out Bush's term in office.

    Posted by LVLIBERTY1 09/17/2007 @ 2:25pm | ignore this person

    Posted by johannesrolf at 09/17/2007 @ 2:48pm

13. Posted by JOHANNESROLF 09/17/2007 @ 2:48pm

    touché

    Posted by frosty zoom at 09/17/2007 @ 3:16pm

14. ours is a caretaker gov't to finish out Bush's term in office.

    Posted by LVLIBERTY1 09/17/2007 @ 2:25pm | ignore this person

    Posted by JOHANNESROLF 09/17/2007 @ 2:48pm

    True of every president in the last year plus of their term in office.

    Posted by lvliberty1 at 09/17/2007 @ 4:05pm