Why Michael Chertoff is a radioactive pick for AG

Just when you thought it was safe to come back from vacation…

At the same moment we learned Alberto Gonzales would step down as attorney general, that favorite Washington parlor game, “Replacement Pick,” kicked into high gear. Initial speculation focused on Homeland Security Secretary Michael Chertoff, a former prosecutor, federal judge, and senior Justice Department official, who, some have long thought, has had his eye on an an eventual AG nod or a Supreme Court nomination in exchange for his DHS service.

But the odds now seem against Chertoff. The chatter I’m picking up has him as a long-shot pick. One concern is that moving any cabinet secretary into the AG slot would mean two confirmation hearings, at a time when the administration would prefer to keep its chieftains out of Congress’ crosshairs.

I see three big reasons why Chertoff is a radioactive pick as AG. Any one of these might not kill his chances, but cumulatively, I think they add up to a no-go.

1.) Katrina. Today is the second anniversary of the storm’s devastation of New Orleans and the Gulf Coast. Chertoff had been on the job six months at the time, and his department’s response, like the hurricane itself, was a disaster. The Gulf still reels from the storms’ effects. (The Times Picayune had this message, blasted across its front page, for President Bush, who’s visiting the region today.) Some think Chertoff escaped much of the blame for the response, and even though his duties as attorney general would have nothing to do with storm recovery, confirmation hearings would force him to answer questions about his actions two years ago.

2.) Torture Memo and Guantanamo Detainees. It’s worth revisiting Chertoff’s confirmation hearings, at which he faced intense questioning about his role in crafting a memo on detainee treatment. The questions held up the hearings for a time. Mark Benjamin digs deep on this in a piece for Salon, in which he pointedly asks, “Did Chertoff lie to Congress about Guantanamo?

3.) Politicization and mismanagement at DHS. The new attorney general is supposed to restore credibility and career morale at the Justice Department. Given Chertoff’s mixed track record on both fronts at Homeland Security, it’s questionable whether lawmakers would see him as the right man for that job. The department is in the midst of a transition from mostly political leadership to career managers. Under Chertoff, the trend towards political management–and politicization–was palpable. The House Homeland Security Committee has cited “critical leadership vacancies” at the department; a quarter of top positions remain unfilled. As I wrote in June, DHS has a reputation as a land of misfit toys, a place where Bush loyalists and partisans get patronage posts for which they lack qualifications. Despite Chertoff’s efforts now to turn that tide, the reputation has stuck, and one can imagine how lawmakers would judge skeptically his ability to cleanse Justice of the stain of partisanship.

So, who are the leading contenders to replace Gonzales? The field appears wide open at the moment, which is a good indication that the White House is slowly and deliberately reaching out to several candidates, either to feel out their interest or to begin wearing them down so they’ll eventually agree to take the job.

For my part, I’m putting early money on a dark horse candidate, who, a colleague perceptively noted, is a protege of White House counsel Fred Fielding, the man heading up the AG search. I’m going with former federal judge Michael Luttig, now general counsel at Boeing. The only hole missing in this man’s impeccable resume is a stint as attorney general. Luttig had a dust-up, of sorts, with the administration over the Jose Padilla case. (He had ruled the administration could hold Padilla, a US citizen, as an enemy combatant, and later refused the government’s request to transfer him to criminal court.) But I’m not convinced that rules him out as a pick. (It will certainly provide fuel for the president’s critics, however.) Still, Fielding is known to consider Luttig one of his proudest accomplishments. See Luttig’s resignation letter, in which he thanks Bush’s father for making his dreams come true, and sums up his view of the judiciary’s role in the war on terror. Fielding, you should remember, also groomed another bright jurist by the name of John Roberts.

Scenario 2: In a replay of the 2000 Cheney-led search for a vice president, Fielding himself is put up for the job. Bush has a rough track record with White House counsels turned-AG (read, ahem, Al Gonzales), and Harriet Miers didn’t fare so well in her attempted jump to greener pastures. But Fielding is respected by Republicans and Democrats, and by several accounts, despite his role in stalling the White House’s response to congressional subpoenas on US Attorneys and warrantless wiretapping, is reportedly well-liked by both sides.