Monday, August 27, 2007

The Wise Men, Redux


Published: August 28, 2007


In 1948, a Republican lawyer named Herb Brownell managed Thomas Dewey’s presidential campaign. When Dwight Eisenhower was beginning his run in 1952, Brownell flew to Paris to tell Ike how to campaign — how to do scheduling, how to organize a campaign team, which positions to take on Social Security and the budget.

Brownell helped gather delegates for Ike at the 1952 convention and helped select Richard Nixon for the vice president nomination. Then, after Eisenhower won the presidency, Herb Brownell was named attorney general.

According to the argument you hear a lot these days, this is absolutely the worst way to pick an A.G. The consensus in these post-Gonzales moments is that an attorney general should be nonpolitical. He or she should represent lofty impartiality and rigorous independence.

Yet Herbert Brownell was a very good one. He pushed a serious civil rights bill which enforced voting rights and cracked down on discrimination. He managed the administration’s response during the Little Rock school desegregation crisis. He fought back when Joe McCarthy tried to get access to presidential personnel and White House records.

Brownell’s political background wasn’t a handicap; it was crucial to his success. Any attorney general has to represent the executive branch in power rivalries against Congress and the courts, rivalries that are built into the Constitution and preoccupy every administration. Doing this effectively requires political experience and skill.

In fact, if you look back over the successful attorneys general (and there aren’t many of them), you see that they tended to possess two key qualifications: They were members of both the political and legal establishments.


First, they had long experience in politics and the ways of Washington. They already had the personal relationships that are the essence of governance. They didn’t have to discover how to ram policy through the system; through long practice it was second nature to them. They had developed contacts across Washington, so they could practice politics without destructive partisanship. Throughout their years in different jobs, they had developed a feel for what could go together and what could never go together.

Second, they had enormous stature in the legal community. They had the raw brainpower that is the threshold for respect in that profession. They had absorbed a sense of propriety and a respect for the opinions of the legal elite.

The exemplar for this kind of excellence — the man everybody points to as the superlative attorney general — is Edward Levi, who served under Gerald Ford. Everybody mentions that he was a highly respected legal scholar with a detached, dignified leadership style and that he brought exceptionally smart lawyers to Justice to serve with him.

But he was also an experienced manager, and he fought for executive privilege with a canniness that could not have come from scholarship alone. As Antonin Scalia pointed out in a memorial essay in the University of Chicago Law Review, Levi fought off intrusions on executive privilege from all sides. He resisted the idea of a special prosecutor assigned by the courts, believing the executive branch should have its own. He battled a Congressional committee that sought confidential Commerce Department reports. (The House had initiated contempt proceedings against the Commerce secretary).

“You may hear,” Chicago law professor Phil Kurland once said of Levi, “that Edward is cold and calculating. This is not the case. Edward is warm and calculating.”

The larger point is that if you look at the successful attorneys general, you see that most emerged within establishments. They were insiders who thrived in staid, hierarchical institutions.

These days, anti-establishment sentiment comes in many flavors and everybody bashes Washington. There is left-wing establishment-bashing, descended from the ’60s. And there is a right-wing version, exemplified by the common Bush administration belief that Washington is inherently polluted and that virtue and good governance can be best provided by outsiders with a Texas twang.

Anti-establishment sentiment once had merit, but it has reached the point of absurdity, and Alberto Gonzales represented many of its failings. He lacked the experience, the professional stature and the insider knowledge required of a good attorney general. He was part of an administration that was unthinkingly hostile to elite opinion, even when the elites were making sense.

Now he is out, almost like in Little League, by mercy rule. And perhaps it’s part of a pattern. Vietnam discredited the old establishment of the Wise Men and the Best and the Brightest. The events of the past few years have exposed the pretensions of the anti-Washington outsider.


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