Clement and Garre: The chosen pair?
on Aug 27, 2007 at 2:55 pm
Commentary UPDATED 6 p.m.
Smart, seasoned, energetic advocate of some of the Bush Administration’s most controversial legal positions — an apt description of U.S. Solicitor General Paul D. Clement, who takes over temporarily as Attorney General, and also of Deputy Solicitor Gregory G. Garre, who seems likely to assume at least temporarily the duties of Solicitor General. And, if as seems a real prospect, those two are nominated by President Bush to hold those positions in their own right, controversy almost surely would accompany them to the U.S. Senate but both, in the end, would probably be confirmed. Neither has stirred up the kind of unrelenting criticism that has dogged the now-resigned Attorney General, Alberto R. Gonzales: they are, in a phrase, Bush policy loyalists without the taint of Democratic hostility.
For the Solicitor General’s office, and thus for the Administration’s stance before the Supreme Court, the changes — at least for the time being — in the leadership of that office would mean little, if any, change in substance. Clement and Garre have been a team, and they would continue to be with Clement at the head of the entire Department. Clement is a slightly more animated advocate, and Garre is somewhat more deferential at the bar, but the substance of what they have been saying to the Court about government policy is indistinguishable. Moreover, much of the professional work of that office is done with special competence by long-term lawyers on the staff — such as, for but one example, Michael R. Dreeben.
Even if Clement’s assumption of Gonzales’ office turns out to be only temporary, it certainly will last weeks and probably months into the new Supreme Court Term. The Democratic-controlled Senate would not move with dispatch on any nominee to succeed Gonzales; the progressive interest groups that have a pile of grievances against the Administration would no doubt emerge as at least visible, if not vociferous, challengers even of Clement. A nomination process for Clement would have to be a political show, no matter how it might come out in the end. However, Clement goes in with one advantage that Gonzales never enjoyed: he is thoroughly accustomed to verbal combat, on important public stages, and is considerably more articulate than Gonzales has been. Clement also does not have the personal identification with George Bush that has become such a liability for Gonzales.
That very lack of identification may help Clement with his most important challenge: creating a new image of an independent and professional Justice Department, a condition necessary to restore flagging morale in the career ranks there. The White House could help, too, by loosening its partisan grip on the Justice Department, a gesture that might well be more attainable with the imminent departure from the White House of its most committed partisan, Karl Rove.
Clement has been involved at a fundamental level in defending President Bush’s “war-on-terrorism” initiatives in the federal courts. Lately, Garre has been joining in that effort — as, for example, in defending the warrantless global wiretapping, purportedly to gather foreign intelligence. But those efforts for the most part have been performed in the courts, as legal advocates, and not behind the scenes as core policymakers in the way that Gonzales has been since 9/11.
In more recent weeks, however, Clement has been an architect of — or at least a cheerleader for — the claims of “executive privilege” that have been coming out of the Bush White House in the wake of aggressive Democratic oversight in Congress. He surely would have to defend that before the Senate Judiciary Committee if nominated to be Attorney General.
In passing, it should be noted that President Bush does not have to make a new nomination for either the Attorney General or Solicitor General positions, and, with only 17 months left in the Bush Presidency, it may be tempting to try to avoid a fight over such nominations. The two could serve in an Acting capacity, as others in those offices have done previously — sometimes, expressly to avoid a fight in the Senate.
Would Clement be interested in the Attorney General’s job? The answer is very likely a fervent “yes.” He has achieved almost all of what a Solicitor General might have hoped for in his quite distinguished tenure in that seat, and it would be a definite boost for his professional future to have served as Attorney General. There has been talk, of course, that the President may want to reward Clement for his government service by nominating him for a federal judgeship. While Clement might be able to win Senate confirmation for a judgeship, as the Bush Presidency winds down, there will be less and less incentive for the Democratic Senate to fill many seats on the federal bench. That remains a possibility, though, if the President should decide not to nominate Clement for Attorney General by opting for a different candidate.
No one who follows the work of the Solicitor General’s office in the Supreme Court should have any doubt about Gregory Garre’s ability to carry on that job successfully. He had served in that office previously, headed the appellate practice group at a major law firm, and then returned to be the principal political Deputy to Clement. Examining even in a cursory way the issues that the Court will be reviewing in government cases in the Term that opens Oct. 1, one cannot discern a single case in which Garre might advocate a position different from what Clement had embraced. The transition would, in all likelihood, be smooth, indeed.
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