The Politics of Justice: Attorney General and the Making of Government Legal Policy: Attorney General and the Making of Government Legal Policy by Cornell W. Clayton

Author:Cornell W. Clayton [Clayton, Cornell W.]
Language: eng
Format: epub
Tags: Marriage & Family, Social Science, Political Science, Sociology, General
ISBN: 9781317455325
Google: E5vtCQAAQBAJ
Goodreads: 27290542
Publisher: Routledge
Published: 1992-08-01T00:00:00+00:00

Depoliticizing Justice

Watergate forced the nation to reexamine the new political role assumed by the Justice Department in American government. Without the scandal, the new norms of partisanship might have been firmly established. The department’s involvement in Watergate, however, led many to agree with former Justice Goldberg, who said bluntly: “Justice and politics do not mix and should not mix.”143

Congressional response to Watergate primarily took the form of proposals for structural changes and increased oversight of the Justice Department and its activities.144 The FBI, in particular, became the focus of heightened congressional scrutiny after revelations that it secretly wiretapped administration enemies.145 While constitutional concerns blocked radical reforms of the sort advanced by Senator Ervin, others, less radical, were instituted. In addition to Congress’s establishment of the Independent Prosecutor’s Office and the Senate’s passage of the Bentsen amendment, the executive embarked on its own series of reforms.

President Ford pledged to appoint an Attorney General on the basis of professional qualifications and to avoid individuals that were partisan activists.146 In naming Edward Levi, he promoted the first legal scholar to the office since Harlan Stone had been selected by President Hoover in the wake of the Teapot Dome scandal. The impact of Levi’s appointment on normative views of the office cannot be underestimated.147 Even the British publication The Economist commented, saying that it symbolized renewed commitment to a nonpartisan Justice Department and to treating it “differently from other Cabinet departments.”148

Before accepting the appointment, Levi reached an understanding with President Ford about the “independent role” he thought the Attorney General should play. In particular, Levi promised to resign if the President ever ordered him to not prosecute a case he deemed worthy.149 Levi stated in his first address as Attorney General that the “law is not an instrument of partisan purpose and it is not an instrument to be used in ways that are careless of the higher values.”150 He later reiterated his resolve to root out partisan politics. “There is no half-heartedness in our efforts to achieve and maintain a Department of the highest professional competence, free of partisan purpose,” he said.151

Levi prohibited Justice Department personnel from participating in the 1976 presidential campaign or other high-level partisan activities, and he issued strict new investigative guidelines. In 1975, he created the Office of Professional Responsibility to investigate and prosecute allegations of misconduct by Justice Department personnel. He also tried to limit partisan influence over the appointment of judges by insisting judges be selected on the basis of merit and professional competence.152 With the exception of John Paul Stevens’s appointment to the Supreme Court in 1975, Levi had virtually a free hand in judicial nominations. As a result, 21 percent of the administration’s district court posts went to Democrats, the highest percentage of judgeships ever granted members of the opposition party.153

At the same time as he de-emphasized the Justice Department’s partisan role, Levi played up its role as a “ministry of justice,” a reference to European institutions responsible for judicial administration.154 Levi was a prominent

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