Since when is the Attorney General a nonpartisan position?

Senate Democrats have preemptively said that they will refuse to confirm Theodore Olson as Attorney General because they think he's too partisan. Ronald Cass wonders when the country established this tradition of nonpartisanship in the Attorney General's office?

Now, Democrats are trying out explanations for changing the rules of the game to justify their pre-announced opposition to possible AG nominees. One creative entry comes from Senator Leahy, who asserts that the nation's Founders wanted those in charge of our justice system, including the AG, "buffered" from political influence. Leahy infers the Founders' intention to treat the AG differently from other Cabinet officers from the fact that North Carolina's 1776 constitution granted that state's AG life tenure. He conveniently overlooks the fact that, knowing this, the Founders chose a different structure for our national government, did not mention the Attorney General in the Constitution, and did not differentiate him from other Cabinet officers either in the founding documents or in the treatment they gave to Cabinet appointments under the early Presidents.

When did the Democrats decide that we need a non-partisan Attorney General without any ties to the President (or, better yet, to his party)? Certainly not in 1961, when John F. Kennedy took office after one of the closest and most suspect elections in American history - with credible allegations of serious vote fraud on both sides, not least in Kennedy's narrow victory in Illinois. Kennedy appointed his brother Bobby - then just 35 years old, nine years out of law school, and lacking any significant legal experience apart from work as a Hill staffer and campaign aide to his brother - to the post of Attorney General. When questioned about this, Kennedy famously quipped "the kid has to start somewhere." In the Kennedy style, it was a cute line, but the President's remark made it obvious that he wanted someone he trusted in the job, not someone with stature in the law much less independence from the President.

There is a legitimate objection to be made to someone who is too close to the President, whether that someone is Bobby Kennedy, John Mitchell, or Alberto Gonzales. It is reasonable to ask whether the individual has the inclination and the capacity to do the job assigned the Attorney General, to be the Government's chief law enforcement officer under the President, to administer the Department of Justice, to protect the best traditions of the Department, and to respect the rule of law.

And the names that the Democrats are preemptively trying to veto are all men of incredible experience who are well-respected in the legal community.

When liberals announce, before the President has made a selection, that these and other well-qualified individuals should not be selected and will not be confirmed - without waiting for a hearing, listening to what the individual selected has to say, or finding out what other respected lawyers and legal scholars say of them - those liberals subvert the very rule of law they purport to defend.

Their pronouncements are rooted in the supposition that any Republican with any ties to the President, Vice-President, or key advisers cannot be trusted to make reasoned decisions on legitimate grounds. That is a shocking and baseless accusation, one that if indulged undermines the ability in good faith to function in a two-party system.

The Wall Street Journal also explains the limitations that the Democrats are trying to place on the Executive Branch with Senators Reid's and Leahy's efforts to paint Theodore Olson as unacceptable.

"Ted Olson will not be confirmed," declares Senate Majority Leader Reid. "He's a partisan, and the last thing we need as an Attorney General is a partisan." That standard could certainly stand some fleshing out. As "partisans" go, Mr. Olson doesn't come close to Bobby Kennedy, the brother of JFK; or Griffin Bell, close friend of Jimmy Carter (and a fine AG); or for that matter Janet Reno's Justice Department, which was run for years not by Ms. Reno but behind the scenes by close friend of Hillary Clinton and hyper-partisan Jamie Gorelick.

Is Mr. Reid saying that a Republican President can't nominate any Republican as Attorney General? Or does he mean that President Bush can only nominate a certain kind of Republican--namely one who agrees with the Senate Democratic agenda, or short of that one who can be easily rolled?

That the latter is the real Democratic game was given away by none other than Mr. Leahy, whose own "partisanship" is so raw he can't disguise it. Number Two on Mr. Leahy's helpful "Checklist for Choosing the Next Attorney General" is this: "A proven track record of independence to ensure that he or she will act as an independent check on this Administration's expansive claims of virtually unlimited executive power."

This idea of an "independent" Attorney General would have been laughable to the Founders, who rejected a bifurcated executive branch. Mr. Olson understands that very well, having served not only as Solicitor General, who argues cases before the Supreme Court, but also as head of the Office of Legal Counsel during the Reagan Administration. Both shops are known as the most professional in Justice, and OLC issues advisory opinions about the legality of executive branch actions. Facing a Congress intent on weakening the Presidency and limiting his war powers, Mr. Olson is precisely the kind of legal advisor Mr. Bush needs in his last 17 months.

Bush may decide that he just doesn't need this battle at this time. That would be a shame.

Last night I heard Bill Sammon pointing to one argument that Republicans might make on Olson's behalf. His wife, Barbara, died in the 9/11 attack on the Pentagon. Sammon pointed out that we have been told repeatedly that the 9/11 widows had absolute moral authority in their criticisms of the efforts made to protect us from future terrorism. How about a 9/11 widower?