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Nomination Preemption
President Bush may choose a new attorney general for his ability to avoid a confirmation fight.

Monday, September 17, 2007

IF PRESIDENT Bush names retired federal judge Michael B. Mukasey to succeed Alberto R. Gonzales as attorney general, it may be as much out of a desire to avoid a confrontation with Congress as out of esteem for Mr. Mukasey.

To be sure, there is much to be admired in Mr. Mukasey. He won plaudits for his deft handling of the difficult case of Omar Abdel Rahman, the "blind sheik," who was convicted for his role in the 1993 bombing of the World Trade Center. He garnered applause from conservatives for upholding the executive's right to designate alleged dirty bomber Jose Padilla an enemy combatant, even while winning the respect of liberals for insisting that Mr. Padilla be allowed to consult with a lawyer. And in a time when bipartisan consensus on almost any subject seems but a quaint ideal, Mr. Mukasey has won fans across the political spectrum, including Gonzales critic Charles E. Schumer (D-N.Y.) and leading conservative pundit William Kristol.

Yet there's also no question that if Mr. Mukasey gets the nod it will in no small part be because he is not Theodore B. Olson, the Washington lawyer whom Mr. Bush was said to be considering for attorney general. Mr. Olson's possible nomination drew howls from Senate Majority Leader Harry M. Reid (D-Nev.), who proclaimed last week that he would do "everything I can to prevent" Mr. Olson's confirmation. The desire to avoid a fight over the next attorney general may, in fact, be the right thing for an already beleaguered Justice Department. But no president should be cowed by the kind of threats lobbed by Mr. Reid. Mr. Olson is undoubtedly partisan. It's no coincidence that he represented Mr. Bush before the Supreme Court in Bush v. Gore. But if he had settled on Mr. Olson, Mr. Bush would have been nominating one of the premier lawyers of his day. Mr. Olson served honorably during the Reagan administration as head of the influential Office of Legal Counsel. His years as solicitor general under Mr. Bush proved he could serve ably and without political rancor even while adhering to a conservative view of the law. Mr. Olson would have restored to the top job at the Justice Department a level of intellectual heft and gravitas that had been absent during Mr. Gonzales's 2 1/2 -year reign of errors.

Without a doubt, Mr. Reid and the Democrats have an obligation to pry deeply into the qualifications and character of the person nominated to the top law enforcement job in the country. What they don't have is the right to usurp the president's role in choosing a nominee who shares his -- or possibly even her -- ideology and priorities.

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