Putting aside the question of judges--since multiple forces are at play in the selection of judges--the question of what the president's view of his or her own power is the more important question. In one sense, the question of expansive power inside the Justice Department has already been settled regardless of who wins the election or who gets appointed. The Justice Department has been pushed to advance the cause of presidential power since the Ford administration, when assistant attorney general Antonin Scalia headed the Office of Legal Counsel. Irrespective or presidency, the Justice Department has been on a consistent tract in pushing presidential power, maintaining consistency among the career attorneys who stay in place when one administration leaves and the next comes in.
The more important players will be those the president surrounds himself with inside the White House Office--particularly among the White House Counsel Office. They whisper in the ear of the president, and are then when the president makes a final decision--often to the chagrin of the Justice Department. And what we know from the current administration is that the advice of legal counsel appears to have a greater effect on the president when the president has no clear understanding of the powers of the Office or no clear understanding of the law. Bill Clinton, for instance, drove the White House Counsels Office and the Department of Justice to support his particular conclusions, even ignoring the advice when it conflicted with his particular purpose. Whether it was the pardon process or going to the Supreme Court to support executive privilege, he understood what he thought presidential power enabled a president to do, even if it meant decreasing that power for future presidents. And Mitt Romney appears to be a president in the George W. Bush mold and not the Bill Clinton mold. Telling was a comment Romney made at a debate last October, when the candidates were asked whether a president could take the country to war unilaterally or does he need the support of the Congress, and Romney answered that he would first need to call his attorneys and ask them.
So what does Romney's selection of legal advisers say about a future Romney presidency? As an overall, it says that Romney would be a president who continued to push expansive presidential power, and certainly supporting the ideal of the unitary executive if not the ways the Bush presidency put the theory to practice. And if Rudy Guiliani does not do well in Florida on Tuesday and drops out, it is clear his lawyers committee will flock to the Romney campaign, making his lawyers committee even more conservative than it already is. So who are these lawyers for Romney? Of note:
- Douglas Kmiec--Kmiec was an architect in the Reagan administration of the use of the signing statement to advance presidential power. Kmiec served in the Office of Legal Counsel in Reagan and Bush I, and has been a support of the unitary executive in its theoretical form. Kmiec, who serves as a Co-Chair for Romney's legal team, has not been a supporter of many of the actions the current Bush administration has taken in the name of the unitary executive. Kmiec fought those who called themselves unitarian but acted contrary to the Constitution even when he was an attorney in the Reagan Justice Department. He found Reagan's interpretation of language that was part of the Immigration Reform and Control Act of 1986 as a gross violation of the president's executive powers.
- Charles Cooper--an attorney in the Office of Legal Counsel and in the Civil Rights Division of the Department of Justice in the Reagan administration. He is also a proponent of the unitary executive theory and was involved in the ground floor of the Federalist Society, a conservative legal organization founded by a number of conservatives affiliated with the Reagan Justice Department.
- Viet Dinh--A member of the Bush Justice Department, serving under attorney general John Ashcroft. Dinh is an avowed conservative, involved in the 1990s in the Senate Whitewater Committee investigations into Clinton wrong doings from the Rose Law Firm, where Mrs. Clinton worked, to the death of Vince Foster, which continues to be the Mother of All Conspiracies among the Clinton-haters. Dinh was also an architect of the PATRIOT Act, among other controversial Bush legal opinions, and thus is a proponent of allowing ideology to influence interpretation.
- Eugene Scalia, the son of Supreme Court Justice Antonin Scalia, served as the Solicitor of Labor under George W. Bush--one of Bush's many recess appointees. Scalia's confirmation was viscerally opposed by Democrats, in particular Senators Wellstone and Kennedy, who argued that he would be placed in the Department of Labor in order to undo regulations that supported the American worker, which is precisely what he did. Scalia was also involved in the Bush administration's attempt to water down the whistleblower protections that were part of the Sarbanes-Oxley bill. In Bush's signing statement to Sarbanes-Oxley, Bush interpreted the whistleblower protection accorded to those wishing to expose corporate malfeasance to only apply only when a congressional committee was actively investigating the corporation. Despite the protests of Senators Grassley (R. IA) and Leahy (D. VT), both who worked extensively on the bill, Solicitor Scalia filed an amicus brief to an administrative review board case using the Bush language of the whistleblower provision. In the end, the Bush interpretation was overturned by the new Solicitor for Labor Howard M. Radzely.
- Michelle Boardman--She was the Justice Department representative sent by the Bush administration to testify at the Senate Judiciary Committee hearing in 2006 on the presidential signing statement. She would certainly be a proponent of aggressive executive power couched in the theory of the unitary executive.
