The Gonzales Replacement Dilemma

After the Watergate scandal exposed how deeply the Nixon Administration had reached into the Justice Department to attack its enemies and strengthen its hold on power, President Gerald Ford appointed the career lawyer and academic Edward Levi to restore trust in the institution. With just over one year remaining in Ford's term, Levi instituted sweeping reforms, created the public corruption division and established guidelines to prevent the resources of the department from being used as a lever of power.

With 16 months remaining in President Bush's term, some Democrats on the Hill are hoping the White House will look to Levi as an example for whom to pick to succeed Alberto Gonzales. "All we ask is that you choose somebody who puts the rule of law first," said Senator Chuck Schumer, who was the loudest voice among Democratic leadership calling for Gonzales's head. He then finished his thought with a thinly veiled threat: "We're not looking for confrontation here."

With a battle already raging over its Iraq strategy, confrontation is exactly what the Bush White House wants to avoid. Heated confirmation hearings that drag into the klieg lights all the Administration's dirty laundry over wiretapping, detainees and the firing of U.S. attorneys could play right into the Democrat's hands. Bush will be looking for candidates who can make it through the confirmation process and won't ignite another firestorm. That said, Bush will be wary of bringing on board a Cabinet member who is hostile to his convictions about the supremacy of executive power in wartime. "The best combination is someone whom the President respects," says Philip Heymann, Harvard Law professor and former deputy attorney general, "but is willing to be independent."

The next Attorney General will have to contend with the perception that Gonzales's office was an annex of the White House. Also, both Ashcroft and Gonzales had strained relations with Congress that won't be easy to repair. But not impossible. The Bush Administration showed it can nominate a Cabinet member who can patch things up with Congress when it selected Robert Gates to replace Donald Rumsfeld as Secretary of Defense.

Initial speculation over Gonzales' permanent replacement focused on Homeland Security Secretary Michael Chertoff. Chertoff would presumably stand a good chance of avoiding a bitter confirmation fight, since he has already sailed through three different confirmations in front of Congress. But his young department's missteps in the aftermath of Hurricane Katrina have made him new enemies on Capitol Hill. Schumer called Chertoff's potential confirmation "hardly a slam dunk." Also, senior staff at Homeland Security are concerned that Chertoff's early departure would be disruptive for a department still in its formative years.

Other names that have been floated include familiar Justice Department officials like former Deputy Attorney General Larry Thompson and former United States Solicitor General Ted Olsen, and elder statesmen like Lawrence Silberman, a U.S. appeals court judge and co-chair of the commission that investigated the intelligence failures leading up the Iraq War, and John Danforth, the former Senator and ambassador to the U.N.

In the meantime, the current Solicitor General, Paul Clement, will step in as Acting Attorney General when Gonzales leaves on Sept. 17. Though tapping the Solicitor General is an unusual move, there is some logic to the choice. Clement already took on some narrowly defined duties from Gonzales in April when the Gonzales recused himself from functions of his department that touched on the U.S. attorneys scandal in which he was a central figure. Also, Clement, in his role as Solicitor General, was tasked with deciding whether or not to seek a special counsel to investigate the legality of the U.S attorneys' firings and the NSA wiretapping program. Ascending to Acting Attorney General puts Clement in the awkward position of taking on the responsibilities of an office he was, just a few months ago, weighing whether to investigate.

Clement, who has argued more 40 cases before the Supreme Court, is well liked by lawyers both inside and outside the Justice Department. Neal Katyal, a Georgetown Law professor who argued in front of the Supreme Court against Clement in the case of Osama bin Laden's driver Salim Ahmed Hamdan, describes Clement as "extremely bright, quite conservative and quite fair." Adds Katyal: "One of the most intimidating things about arguing against him is he stands up at the podium with no notes."

What Clement could bring to the job that Gonzales lacked is political acumen. Early in his career, Clement served as a senior staff member of the Senate Judiciary Committee, experience that could serve him well as he takes over a department that has had a rocky recent relationship with Congress. It's possible that Bush would leave Clement in office for the remainder of his term. The President chose pointed compliments when he announced Clement would be stepping in for Gonzales. "Paul has a reputation of fairness," said Bush, "and earned the respect and confidence of the entire Justice Department."