President Trump’s decision to fire former FBI director James B. Comey may not be the disaster it appears to be — provided he chooses someone of unquestionable character, experience and, most importantly, independence to replace him.
And in selecting that individual, Trump has a perfect model: his nomination of Neil M. Gorsuch to the Supreme Court.
The Gorsuch nomination came in the wake of another controversial dismissal of sorts: Senate Republicans’ refusal to confirm Merrick Garland, President Barack Obama’s nominee to succeed the late Justice Antonin Scalia, during an election year. When Senate Majority Leader Mitch McConnell (R-Ky.) announced the Garland nomination was dead on arrival, Democrats howled. Despite the hypocrisy of those such as then-Sen. Joe Biden (D-Del.) and Sen. Charles E. Schumer (D-N.Y.), who both had said when Republicans were in office that Supreme Court vacancies created during a presidential election year should not be filled, Democrats wailed about a “stolen seat” and complained about the unjust treatment of Garland. Then, after the election, even before Trump made his choice to replace Scalia, Schumer announced that he planned to use the filibuster to “keep the seat open.”
If Trump had picked a more controversial Supreme Court nominee, the filibuster might have succeeded. There was heartburn in the GOP caucus about invoking the nuclear option — changing the Senate’s rules to end debate on Supreme Court nominees by a simple-majority vote. A different pick, and Trump might not have had the votes to do it.
But instead he selected Gorsuch, a judge of such impeccable temperament, character and intellect that his choice won plaudits not only from conservative legal scholars, but also from liberals such as Harvard Law professor Laurence Tribe and former Obama acting solicitor general Neal Katyal. Gorsuch was so obviously qualified — and the Democrats’ effort to block him were so transparently partisan — that it united Republicans behind the nuclear option and ensured his confirmation.
Now the cries of a “stolen seat” are long forgotten. Democrats’ current outrage over Comey’s firing will be similarly forgotten if Trump selects a replacement in the mold of Gorsuch.
Some of the names being floated — such as former New York mayor Rudy Giuliani, New Jersey Gov. Chris Christie, and former GOP senator Kelly Ayotte of New Hampshire — would be disastrous choices. Trump cannot pick a partisan ally or elected official. He needs to pick someone above politics — a longtime FBI or Justice Department veteran, or a respected federal judge — who will command instant respect on Capitol Hill and inside the bureau.
Fortunately, the Trump administration has scoured the conservative legal world, and compiled long lists of potential candidates for the Supreme Court and more than 120 openings on federal and district courts. These lists could be used to select a new FBI director as well. Indeed, the hard part may not be finding a qualified candidate, but finding a qualified candidate willing to take on the FBI director’s woeful portfolio of politically charged investigations. It will require a great patriot to accept that thankless job.
The most interesting suggestion so far has come from Sen. Mike Lee (R-Utah), who tweeted that Trump should select none other than Garland. A Lee spokesman explained that Garland is “eminently qualified and has the reputation needed to restore public confidence in the FBI.” Before joining the federal bench, Garland was an assistant U.S. attorney in the District of Columbia, deputy assistant attorney general in the criminal division and principal deputy to the deputy attorney general, where he led the teams that tried Oklahoma City bomber Timothy McVeigh and Unabomber Ted Kaczynski. It would be extremely hard for Democrats, who spent the past year singing Garland’s praises, to turn and oppose his confirmation as FBI director. And Republicans would be thrilled to be able to fill his seat on the U.S. Court of Appeals for the D.C. Circuit.
The consequences of a bad choice, by contrast, could be devastating. Democrats would have a field day with the confirmation hearings and would quickly turn them into a political circus. While most Democrats will likely oppose even the most impeccably qualified nominee Trump puts forward — just as they opposed Gorsuch — if the president loses just three Republican votes for his FBI candidate, he would suffer a devastating congressional defeat. Moreover, a bad choice could prompt enough Republicans to break away and support Democrats in the creation of an independent counsel to investigate Trump’s campaign and Russia’s meddling in the 2016 election.
If he makes the wrong pick, Trump could also face a revolt from the FBI and Justice Department rank and file. Comey had alienated some in both the bureau and the department, but he also had loyal supporters. The Post reports that his dismissal “has left raw anger, and some fear, according to multiple officials,” adding that “many employees said they were furious . . . saying the circumstances of his dismissal did more damage to the FBI’s independence than anything Comey did in his three-plus years in the job.” If the president thought the leaks were bad before, imagine the sieve that could ensue with the wrong pick.
By contrast, if Trump selects a strong, respected, independent nonpolitical leader, the current controversy over Comey’s firing will be remembered as nothing more than a brief kerfuffle.
A strong nomination erases a host of perceived sins. So Trump had better pick wisely. Things could get much better — or much worse — depending on his next move.