Alberto Gonzales, American Constitution Society (ACS), D.C. Circuit, Department of Justice, Federal Government, Federal Judges, George J. Terwilliger III, Larry Thompson, Laurence Silberman, Politics, Ted Olson

Who Will Be the Next AG? We’re Saying Silberman

Laurence Silberman Judge Laurence H Silberman Laurence Hirsch Silberman Above the Law blog.jpgAs noted in the Washington Post, President Bush is expected to name Alberto Gonzales’s replacement as attorney general in the next few days, after returning from Australia tomorrow. The WaPo seems to be predicting Ted Olson:

[F]ormer solicitor general Theodore B. Olson has emerged as one of the leading contenders for the job, according to sources inside and outside the government who are familiar with White House deliberations.

Other candidates still in the running include former deputy attorney general George J. Terwilliger III and D.C. Circuit Court of Appeals Judge Laurence H. Silberman, according to the sources, who declined to be identified because of the sensitivity of the discussions.

Even though we’re still rooting for our former boss, based on this short list, we’re predicting Judge Laurence Silberman (who previously served as Deputy Attorney General, the #2 job at the Justice Department).
More thoughts, including discussion of George Terwilliger and Larry Thompson, after the jump.


Judge Silberman would be a Fred Fielding-esque pick: a respected elder statesman, brought in to clean up the messes of Bush’s “Texas mafia.” Of course, one could say the same thing about Ted Olson. But Judge Silberman is just as solid ideologically as Theodore Olson, with two notable advantages.
Advantage #1: As a sitting federal judge for over two decades, who has harshly criticized Bush Administration lawyers at times, Judge Silberman is tough to portray as a partisan hack (even if he might be portrayed as a temperamental SOB, who once threatened to punch a colleague).
So the whole “I’m a judge” thing is one big plus that Silberman has over Olson. Sure, Ted Olson’s involvement in Bush v. Gore didn’t stop him from getting confirmed as Solicitor General. But with Democrats reveling in their control of Congress, they may be harder on him this time around.
Advantage #2: National security is a huge part of the AG portfolio these days. Judge Silberman, who co-chaired the Iraq intelligence commission, has impeccable national security credentials. A number of the recommendations from the WMD intelligence commission that he chaired have been implemented. E.g., the creation of a National Security Division at the Department of Justice. Judge Silberman can credibly claim to have thought long and hard about how the DOJ should respond to national security threats.
One random question: Does anyone know what the deal with Judge Silberman’s judicial pension or retirement benefits would be if he takes this job? This is one issue that sometimes comes up when federal judges step down from the bench to take other jobs, and sometimes it’s a dealbreaker.
If Judge Silberman doesn’t get the job, maybe because of some issue related to his pension, we could totally see George Terwilliger being nominated. Here’s a good summary of his credentials, from an earlier WSJ Law Blog post:

The White & Case partner is a former No. 2 at the Justice Department during the administration of President Bush’s father. (He briefly served as acting attorney general, according to his White & Case bio.) He is a former U.S. Attorney of Vermont and a key member of the Bush campaign’s legal team during the Florida recount in 2000. He was also a leading candidate to become FBI director, a post handed to Robert Mueller.

We saw Terwilliger on a panel at the recent national convention of the American Constitution Society (ACS), and we were favorably impressed. He was wearing khakis, a blue blazer, a white shirt, and a red tie — suggesting that he’s a solid conservative, both sartorially and jurisprudentially. His remarks during the panel, which was entitled “Congress and the Balance of Power,” were conservative — he was the designated right-wing gadfly for that panel — but reasonable. (A summary of his comments appears at the end of this post.)
What about Larry Thompson? Back in April, when it first looked like Alberto Gonzales might step down as AG, we opined that LT would get the nod. But we no longer think that, having spoken to a number of sources who note that (1) Thompson would have to give up his lucrative sinecure at Pepsi to take this job, and (2) unlike many others, he actually managed to leave the DOJ with his reputation intact, even burnished. Why would he want to go back now, at a time of high partisanship, and jeopardize a possible future SCOTUS nomination?
So we’re saying Silberman. But who knows? Feel free to opine in the comments.
P.S. For those of you who might be interested, here are some notes we jotted down about George Terwilliger’s remarks at the ACS conference (paraphrased from what he said):
— the balance of power between Congress and the executive ebbs and flows with the circumstances;
— we’re getting a good civics lesson right now: the President launched a war that’s now unpopular, the people elected a Congress of the opposite party, and now we’re seeing more oversight;
— the check on executive power is more political than legal in nature;
— much of the Administration’s assertion of executive power is about responding to 9/11;
— it would be impractical for Congress to try and influence the President’s conduct of a war by making funding decisions contingent on certain actions;
— nor can Congress set artificial time limits for a military engagement;
— How can Congress maintain effective oversight when some of what the executive branch is doing requires secrecy? It’s a difficult question.
— Sure, there needs to be more consultation between the branches — but Congress needs to act responsibly with highly sensitive information.
— I was an AUSA for eight years [good point -- can't be attacked as lacking prosecutorial experience]. I understand the importance of prosecutorial independence. But our system does make the field generals — the U.S. Attorneys — presidential appointees. As such, they are to carry out the policies (but not the politics) of the president.
— Of course they can’t use their power to influence a particular case for partisan reasons. But I don’t see that in what has come up so far [with respect to the fired eight/nine U.S. Attorneys].
Bush Expected to Nominate Attorney General Next Week [Washington Post]
Report: Bush To Choose New AG This Week [WSJ Law Blog]
George J. Terwilliger III [White & Case]
Laurence H. Silberman [Wikipedia]
Earlier: The Short List

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