A Lame-Duck Choice

By Robert D. Novak
Thursday, September 20, 2007

According to conventional wisdom in Washington, opposition from Senate Democratic leader Harry Reid killed President Bush's choice of Theodore B. Olson for attorney general. But that is not the whole truth. From the moment Alberto Gonzales resigned on Aug. 27, there was divided advice about Olson inside the White House. Influential senior aides flinched at a difficult confirmation, reflecting a disinclination to confront Democrats -- with consequences for the last year of George W. Bush's presidency.

Before Reid issued his dictate, there was hand-wringing among the president's aides not only about Olson, a former solicitor general, but also about other well-qualified prospects who might not meet with Reid's approval. That launched a three-week search for someone who could satisfy Senate Democrats while not antagonizing the conservative Republican base -- no easy task. The best Bush's talent scouts could do was Michael B. Mukasey, a 66-year-old retired federal judge who appears unqualified and ill-equipped for the daunting task of rehabilitating the Justice Department.

The selection of Mukasey instead of Olson prompts worries among loyal Republicans that transcend Justice's problems. The White House first indicated that the president would veto the expensive student loan bill, but it has switched signals. After considering vetoing a congressional ethics bill that does nothing about earmarks -- or at least letting it become law without his signature -- Bush signed it, albeit without a ceremony. That has spawned speculation over whether Bush really would veto a popular health insurance bill or a catchall appropriation, the latter at the risk of closing down the government. An unpopular president managing an unpopular war, Bush looks like a lame duck playing out the string.

The White House's short list of successors to Gonzales included Republican lawyers with broad, high-level experience inside the Justice Department: George Terwilliger and Laurence Silberman, both of whom had served as deputy attorney general, and Olson. Terwilliger did not survive the White House selection process, and administration sources said there was doubt that Silberman -- a judge with senior status on the U.S. Court of Appeals for the D.C. Circuit -- would accept. That left the highly esteemed Olson.

Behind closed doors at the White House, a spirited debate ensued. Olson had the experience and ability to clean up the department. But in 2001 he barely won confirmation as solicitor general, 51 to 47, largely along party lines. With no way to challenge his qualifications, Democrats cited his role as a board member of the American Spectator magazine when it investigated President Bill Clinton. The White House debate was settled last week when Reid flatly declared that Olson could not be confirmed.

Bush unwisely bought into Democratic senators' confusion of confirmation standards -- between federal judges who work on their own during lifetime service and a Cabinet member serving at a president's pleasure and executing his wishes. Ideology aside, Mukasey is not well qualified to be attorney general by any rational standard. With his governmental career as a prosecutor and judge exclusively, he is now being asked to bring order to an agency he does not know. He will not get much help from a desiccated and demoralized staff that lacks both a permanent deputy and an associate attorney general.

What concerned the White House, however, was not Mukasey's administrative skills but the perception of his ideology. Mukasey was attractive to Bush aides dreading a tough confirmation battle because he has support from Democratic Sen. Charles Schumer, a fellow New Yorker who has led many fights in the Senate Judiciary Committee against Bush nominees. But Schumer's support and leftist judicial advocate Nan Aron's earlier recommendation of Mukasey for the Supreme Court made him suspicious in the eyes of conservative Republicans.

The president's team was not going to repeat the mistake it made with Harriet Miers, whose Supreme Court nomination was sprung suddenly, only to be shot down by conservatives. Senior aides Ed Gillespie and Barry Jackson contacted conservatives last weekend, and some talked personally with Mukasey. He passed muster with them as conservative enough.

Presidents sometimes regret making nominations for the sake of presumed confirmability, but the beleaguered Bush team did not feel it had much choice in picking Gonzales's successor.

¿ 2007 Creators Syndicate Inc.

© 2007 The Washington Post Company