The Next Attorney General

Well, at long last, Alberto Gonzales has resigned. And for the sake of the country, that's excellent news. Whoever is chosen to replace him, it will be an improvement. How much of an improvement will depend largely on how much of a backbone Senate Democrats display during the confirmation process. As Glenn puts it:

This is a real moment of truth for the Democratic Congress. Democrats, who have offered up little other than one failure after the next since taking power in January, can take a big step toward redeeming themselves here. No matter what, they must ensure that Gonzales' replacement is a genuinely trustworthy and independent figure.

That means that Democrats must not confirm anyone, such as Michael Chertoff, who has been ensconced in the Bush circle. Instead, the DOJ and the country desperately need a completely outside figure who will ensure that the prosecutorial machinery operates independently, even if -- especially if -- that means finally investigating the litany of Executive branch abuses and lawbreaking which have gone almost entirely uninvestigated, as well uncovering those which remain concealed.

Chertoff--a former federal prosecutor, Assistant Attorney General, and federal judge--certainly has the credentials to be Attorney General. He's far more qualified that Gonzales was. Which is why the Democrats in the Senate need to get on the record immediately with a principled explanation of why someone like Chertoff, despite his credentials, is an unacceptable choice for Attorney General.

There is no chance that Bush is going to nominate someone who isn't deeply conservative. Nor, frankly, would it be fair for the Democrats to demand such a nominee. The President has the right to select someone who shares his ideology. This is why elections matter.

That said, Senate Democrats have every right to demand that the nominee meet other criteria. They should demand that the nominee not be a member of Bush's inner circle or someone who has a close personal relationship with the President. If the Gonzales era has taught us anything, it's that the head of the Justice Department needs to be someone who can be trusted to stand up for his department and resist White House efforts to micromanage and politicize the machinery of justice. The DOJ's reputation has suffered greatly under Gonzales and only someone known for his (or her) integrity and independence can hope to restore that reputation.

I also think the Democrats should use the confirmation process to demand cooperation in a number of stalled investigations. For instance, Gonzales' successor will have the power, once confirmed, to provide documents that Senators have long sought, such as the opinions authorizing the President's warrantless surveillance program(s). I think it's perfectly fair for the Democrats to use their leverage to attempt to extract specific promises of cooperation on various fronts. There's no guarantee that the nominee would honor such promises once confirmed, but reneging on an explicit promise is probably not the way the new Attorney General will want to start his term.

But to avoid looking unreasonable, the Democrats need to make these demands now. They need to tell Bush exactly what criteria they'll use in evaluating the nominee and what they are going to demand of him (or her). And most of all, they need to explain to the public why these demands are reasonable. If they don't take these steps immediately, the White House will be able to frame the public debate and make it entirely about the credentials of the nominee, much as they were able to do with the nominations of Roberts and Alito to the Supreme Court. You can't impose your criteria after a nominee is selected. Then it just looks reactive and partisan.

Given recent history, I'm not at all confident that the Democrats in the Senate will actually do any of this, but someday perhaps I'll be pleasantly surprised.

Dahlia Lithwick and Emily Bazelon at Slate have a rundown of the potential nominees.