Re: Everyonce in a While January 7 2009
My apologies for forcing you into an uncomfortable situation. A few comments seem to be in order, though.
I find it interesting that Specter and Patrick Leahy are in agreement on this. Not a dimes worth of difference between Arlen and one of the most partisan liberal Democrats in the Senate.
The Attorney General is not the only bureaucrat who takes an oath to uphold the Constitution. That applies across the board. If we accept Specter and Leahy’s argument then all cabinet officials and agency heads would have an obligation to determine for themselves what is and is not lawful or constitutional and to obstruct the President’s policy when they determined it to be out of bounds.
As we have seen many times in recent years the question of what is and is not legal and/or constitutional is frequently a matter of debate. Opinions vary widely and are passionately disputed. In our system the resolution of those disputes is [rightly or wrongly] the province of the judiciary and ultimately the Supreme Court. It is not, and never has been under any previously recognized arrangement, the province of the executive branch or any of its agencies. It is certainly the Attorney General’s responsibility to offer the best advice available to the President, including his or her opinion on the legality or constitutionality of any proposed policy or action, but he must never cross the line into active obstruction. If he/she feels that he/she is being coerced into pursuing an illegal or unconstitutional course of action it is incumbent on him/her to resign his/her office, after which he/she can make whatever public pronouncements he/she might wish. The Department of Justice is not, and must never become, an independent agency that usurps the role of the judiciary.
[Parenthetically: do you find gender neutral or inclusive usages as annoying as do I?]
Gonzales was indeed a pathetic figure, but the criticisms of him voiced by Sens. Specter and Leahy are at best weak.
The charge of “politicizing” the Justice Department is flat out ridiculous. It presumes that federal agencies, staffed by “professionals”, are apolitical, disinterested sources of independent authority. That is nonsense — there is no such thing as a disinterested authority. To assert that such a beast exists is to take us one step closer to rule by a professionalized technocratic elite and the extinction of democracy. Attorneys General and U.S. Attorneys are not elected independently. They are appointed by the President in order to put into place his policies. That is in essence a political act. He/She, not they, is the elected representative of the American people. It is he, not they, who has the responsibility for setting policy. They can protest, they can resign, but they cannot obstruct.
It is amusing to see lawyers like Leahy and Specter denouncing “legalisms”. It raises the question of just what is a “legalism”. Is it nothing more than a judgment or argument with which you disagree? I assume that they mean the term in its formal sense — adherence to the letter, rather than the spirit of the law. But isn’t adherence to the letter of the law, by definition, acting legally? Once we start invoking the “spirit” of the law, rather than the law itself, we are in the realm of interpretation and revisionism. The law comes to mean anything I want it to. The President and the Attorneys General are bound by the letter of the law, and so long as they conform to the letter of the law they are acting legally. If Sens Leahy and Specter have a problem with that they should work to change the law rather than to invoke the nebulous “spirit” of the law. If there is a serious discrepancy between the law as written and the “spirit” it was intended to express, that is the fault of Congress which has written an inadequate law, and it is the responsibility of Congress to correct it. Rather than criticizing the Attorney General, the Senators should be criticizing themselves and the body they represent.
And regarding the idea of “executive overreaching” — that is ridiculous. Throughout our history there has been a tension between the Executive and Legislative branches of government. Strong Presidents gain power at the expense of Congress. Weak Presidents cede power to Congress. The turf fighting is inteminable and plagues every adminstration and Congress. During the Depression and WWII the executive expanded its power at the expense of Congress. In the wake of Vietnam and Watergate Congress asserted itself and expanded its authority at the expense of the executive. Bush has tried to restore some of the authority exercised by earlier executives. That is hardly “overreaching” — simply an expression of the ever-shifting balance between Presidential and Congressional authority.
I agree that Gonzolas did not acquit himself well when testifying to Congress.
Thank you for providing me with yet another opportunity to trash the despicable Specter.
Possibly Related...
Comments, compliments or complaints?