Why the US Attorney Scandal Is a Domestic Iraq

The US Attorney scandal could be the big one - the one which finally brings down the miserable reign of George the Terrible. Yes, I know - he should have been impeached for lying to Congress when he started the Iraq war. But he wasn't and he won't be. Obstruction of Justice, however, is another matter. It's a clear charge, and it's not that far from what brought down Nixon and what nearly brought down Clinton. All of the fired US Attorneys refused to use their office in a partisan manner. (More on this in a moment.) That is a line which even timid electeds should not want crossed.

But the Justice Department scandal is actually bigger than that. In fact, it is part of the only domestic action of this administration which is as bad - if not worse - than the Iraq war.

And that is the politicalization of the entire legal system.

From the moment Bush II took office, he began to appoint the most partisan, ideologically charged federal judges imaginable. This was not simply a matter of who made it to the Supreme Court; the Bush appointments went up and down the federal system. One thing held together each and every Bush appointee - a strict adherence to far-right ideology. Remember that most cases never make it to SCOTUS (which, under Roberts, has been even more wary than most courts of accepting cases). Most law is made on the appellate or circuit level, and Bush has stocked those courts with people whom he trusts to keep the country heading rightward, no matter who wins the next election.

Aziz Huq's posting is quite on point here: the basis of the US Attorney firings was to redefine the office in the most partisan terms possible.

What we must understand is that this is not a new policy. It's actually a continuation of what Bush has done (successfully, thanks in part to Democrats who rolled on appointee after appointee) with the judiciary.

Bush's judicial appointees had a specific purpose: to perpetuate far-right policy after Bush himself left the scene. This is not merely a matter of overturning Roe. These appointees were made with an eye to eviscerating the wall between church and state, stifling environmental legislation, cutting back free speech protections, limiting civil rights, further curtailing unions, and strengthening the executive at the expense of all other branches of government (which could, of course, lead to future Iraqs).

The US Attorney scandal is simply more of the same. All of the fired attorneys were guilty of the same crime: they refused to bend the law to partisan considerations, either by refusing to prosecute Democrats or (even worse) by actually prosecuting Republicans.

Their transgression, in other words, was refusing to bend the law to Republican purposes. They were, every man and woman, law-and-order conservatives. Alas for them, they were conservatives with principles, and that proved unacceptable.

Now go back and examine what Bush did with the judges: first, he removed the ABA from the vetting process, effectively eviscerating any professional standards. Then he had Senator Hatch change the confirmation rules so that "home state" Senators could no longer block a nominee they knew to be unacceptable. (Does this sound familiar? As Huq points out, it's precisely what the Patriot Act provision did with US Attorney appointments - remove the power of Senators to use their knowledge and experience as a form of oversight.)

It is naïve (at best) to imagine that any Justice Department (much less any judicial appointment) is not political. One need only look at what Robert Kennedy did and did not do on civil rights, just as one need only look at what FDR could and could not accomplish when it came to the Supreme Court.

All US Attorneys will have the political cast of the administration which appoints them, just as most judicial appointments will reflect, at least initially, the politics of the President who nominates them.

But political and partisan are two different things.

Until this administration, we expected US Attorneys and federal judges to act in a non-partisan manner once they are appointed.

That is no longer the case.

Let's not forget that both prosecutors and federal judges are often ambitious people. As Rudy Giuliani reminds us, a prosecutor with good headlines can be a very effective candidate. (Dewey came damn close to defeating Truman.) And there is no cleaner route to the Supreme Court than being a stellar federal Circuit Court judge.

In Bush-world, however, it's not how effective you are that counts. It's how loyal to factional policies you are. That's why the successful prosecution of Duke Cunningham doomed Carol Lam (and why Roberts and Alito are sitting on SCOTUS). Bush has made it very clear to judges and attorneys alike that there is only one path to advancement: strict right-wing adherence.

This is something new and radical - Bush has made the entire legal system not merely responsive to politics but overtly and comprehensively partisan.

Bush sent a message to every U.S. Attorney - prosecute in a partisan manner or lose your job. The same message applies to every federal judge - rule in a partisan manner or forget advancement.

No matter what the outcome of the US Attorney scandal shall be, Bush's appointees shall pass when a new President (of whichever party) is elected. No matter how tragic the outcome, the Iraq war shall eventually end.

But the Bush judges will continue to sit and define our most basic laws until they die. They will be able to eviscerate any laws a Congress of any party may pass.

And that is worse than Iraq.