Gonzales Case Echoes FDR's AG Problems

The resignation of Attorney General Alberto Gonzales has set up a potential confirmation battle over his successor. The whole scenario reminds some observers of events during the later years of President Franklin Roosevelt's administration.

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STEVE INSKEEP, host:

While you're enjoying your holiday, official Washington is awaiting President Bush's nomination of a new attorney general. We don't know who it'll be or exactly when the person will be named.

But the resignation of Attorney General Alberto Gonzales and the temporary appointment of the Solicitor General Paul Clement to serve as acting attorney general prompt a look back at some historical contrasts and parallels.

Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG: In 1952, during the Korean War, with steel workers and manufacturers at a labor impasse, President Truman seized the nation's steel mills on the grounds that national security demand that they continue to produce. The mill owners went to court.

Today, once again, the Supreme Court is considering a major test of executive power involving the right of Guantanamo detainees to challenge their detentions in court.

In 1952, as now, the attorney general had been forced to resign. And then, as now, the man who stepped in as acting attorney general was the solicitor general. Truman was soon repudiated in the steel-seizure cases, and the seminal opinion was written by Justice Robert Jackson. Jackson had himself served as attorney general on the eve of another war.

In 1940, President Roosevelt promoted him from the solicitor's job to replace Attorney General Frank Murphy, who was elevated to the Supreme Court. Murphy had provoked problems at the Justice Department, having pushed career lawyers aside and replaced them with a political team as the inner circle. Sound familiar?

According to St. John's law Professor John Barrett, Jackson - though a long-time Roosevelt partisan - run the department entirely differently.

Professor JOHN BARRETT (Law, St. John's University): Jackson immediately brought all the career people back. Some had retired, and he rehired them. Others hade been moved by Murphy down to back offices and subordinate positions, and Jackson basically reconstituted the Department of Justice circa late 1938 when he took the job in 1940, and they loved him for it.

TOTENBERG: Indeed, says Jackson biographer Barrett, 18 months later, when Jackson was himself named to the Supreme Court...

Prof. BARRETT: The senior staff at the Department of Justice - including lots of career people - took up a collection and then later sold tickets to employees, and on the evening two days later, had the main ballroom at the Mayflower and a side room for a receiving line where Jackson and his wife, Irene and their daughter, Mary, shook 1,500 hands of Department of Justice employees.

TOTENBERG: And back in 1941, that was almost all of the employees. Jackson was beloved by the career employees, say historians, because of his personality and independence. Again, Professor Barrett.

Prof. BARRETT: Jackson was a Roosevelt intimate, intimate insider. Yet Jackson's idea of the job was that it very much was a law job. And Jackson's history was to state his mind and often to disagree with Roosevelt, and Roosevelt valued that. So it is friendship, one can call it cronyism, but it's a kind of a relationship that includes a lot of Jackson saying no.

TOTENBERG: The president didn't always take Jackson's advice. In the run up to World War II, for instance, FBI director J. Edgar Hoover was wiretapping U.S. citizens and aliens in the U.S. After the Supreme Court ruled that there was no statutory authority for wiretapping in an alcohol smuggling case, Jackson ordered Hoover to stop, and the FBI director appealed to Roosevelt.

The president eventually overruled Jackson, claiming a national security authority to wiretap, an authority that - despite Supreme Court's decision since then and the federal law - is still being asserted by the Bush administration today.

Nina Totenberg, NPR News, Washington.

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