Alberto Gonzales And The U.S. Attorney Firings

Byron York offers a harsh assessment of Attorney General Alberto Gonzales's testimony to the Senate Judiciary Committee on Thursday.

I haven't followed the issue as closely as perhaps I should have and don't have an overall verdict. But I want to add something to the discussion that I haven't seen mentioned prominently. My understanding is that U.S. attorneys are, or at least traditionally have been, in effect, senatorial appointments. The senior senator of the president's party makes a recommendation, which is followed unless there is some important objection. If there is no senator of the president's party, the recommendation may come from the senior House member from the president's party or from the governor if he or she is of the president's party. Senators of either party have also traditionally had veto power over these appointments.

My understanding is that the Bush administration has changed this system by having the senator(s) pick from three names on a list. But senators have still played a role. Sen. Peter Fitzgerald, a Republican much at odds with most established Republicans in his state, got out-of-towner Patrick Fitzgerald picked as the U.S. attorney for the Northern District of Illinois (Chicago). This is one of the most important U.S. attorney positions in the country. Other Illinois Republicans and Illinois Democrats didn't like it. But apparently Democratic Sen. Dick Durbin went along, presumably preferring an out-of-town career professional to an in-state Republican with ties to Republican machine politicians.

I would defend the senatorial system. From what I have been able to glean over the years, senators of both parties have generally done a good job of selecting U.S. attorneys. Senators evidently understand that a federal prosecutor has important responsibilities and vast powers, and they want responsible people in the job. Responsible people with their own political convictions, perhaps, but responsible people, people who will prosecute people who should be prosecuted and who will not abuse their power by prosecuting people who should not be prosecuted. The U.S. attorneys I have been acquainted with, of both parties, seemed to take these responsibilities very seriously.

Senators all have contact with leading lawyers in their states and can canvass expert opinion about possible nominees, and in my experience good practicing lawyers have a good sense of the abilities, judgment, and integrity of other lawyers and recognize them even in lawyers of the other political party. When Samuel Alito was nominated to serve on the Supreme Court, I noted that he had been U.S. attorney in New Jersey, a state where many politicians have been prosecuted, and that he must have been approved by Democratic Sens. Bill Bradley and Frank Lautenberg, as indeed he was. I am sure that Bradley and Lautenberg would not have approved someone who they thought would not have prosecuted Republican politicians who deserved to be prosecuted or would have prosecuted Democratic politicians who did not deserve to be prosecuted. Their approval was testimony that they had confidence in Alito's fairness and judgment.

It appears to me from my admittedly incomplete examination that Gonzales treated the replacement of U.S. attorneys as a matter not of senatorial concern. He evidently delegated all the decision making to his young chief of staff and seems to have accepted his recommendations perfunctorily. Also, the provision Republicans put into a bill allowing the attorney general to make interim appointments of U.S. attorneys must have looked to senators like an attempt to bypass them and prevent them from affecting law enforcement in their states.

My advice, if he had asked me, would have been to consult with senators from each of the states involved and to get their recommendations for a replacement. Even Democratic senators. I suspect that one reason senators have been so indinant about this case is that senators weren't consulted. As they should have been. Over the years, the vast majority of senators have exercised this power responsibly. Read Senator Lautenberg's statement, linked to above, in support of Alito. He had obviously devoted a lot more time and thought on who should be U.S. attorney in New Jersey and how he should carry out his duties than Gonzales did in deciding whether certain U.S. attorneys should be replaced.

Final thought. I once heard Justice Antonin Scalia remark that back in the days when state legislatures rather than voters chose U.S. senators, senators were in effect the ambassadors of state governments to the federal government. In those days, the selection of U.S. attorneys must have been a sort of combined state-federal undertaking. And to some extent it still is--at least until Gonzales's chief of staff decided to bounce eight U.S. attorneys.

A Few Thoughts on Guns

Glenn Reynolds links to this poll on guns in public places in Tennessee. Result when I checked: 96 percent yes. By the way, Reynolds has reminded us that the Tennessee Constitution contains an even stronger affirmation of the right to keep and bear arms than the Second Amendment.

Here's an article reminding us that mass shootings are a problem in other countries, too. Restrictions on gun purchase or ownership don't seem to prevent them. Remember, they're not a statistical phenomenon. People that do this kind of thing are very, very rare, but unfortunately not nonexistent, and all it takes is just one crack in an otherwise rigorous gun restriction system for them to get their vicious hands on a weapon.

Pollster Scott Rasmussen reports that support for "stricter gun control laws" has increased since the Virginia Tech shooting. Respondents favor stricter gun control laws by a 45-to-37 percent margin. After the Dick Cheney hunting accident, they were 39-to-52 percent on the question.

But there are two caveats. Those with no opinion on the issue doubled from 9 to 18 percent. Support for stricter gun control laws actually went up only 6 points, a barely statistically significant increase. Are some respondents unwilling to say they are against stricter gun control in the wake of a terrible tragedy? Perhaps. Note also that on this issue, unlike most issues these days, independents (39 percent for stricter gun control) are closer to Republicans (29 percent) than to Democrats (63 percent). Democratic politicians might rally their base by championing stricter gun control laws. But they might hurt themselves among independents, whom they carried handsomely in 2006.

Satellite Radio and Antitrust

On Reason's excellent blog, Radley Balko takes on the National Association of Broadcasters and its battle against the XM-Sirius merger. The NAB represents broadcasters who broadcast programming free to the listener, programming that is paid for by advertisers (by very many advertisers, as anyone who listens to broadcast radio knows). It is of course opposed to satellite radio, which threatens to take away part of its audience. Which it does: I don't listen to music on broadcast radio anymore; I listen on the Sirius satellite radio in my car. When it has suited its needs, the NAB has argued that satellite radio is a competitor. But now that it wants to oppose the merger of XM and Sirius, the only two satellite radio outfits allowed by the FCC, it is arguing that satellite radio is not a competitor.

Why such inconsistency? Well, the argument against the XM-Sirius merger is that it would give one company a monopoly of satellite radio. No more competition. Monopoly prices. A clear-cut violation of the Sherman Act. But what if, as XM and Sirius argue, the market is not radio but devices to listen to music and other programming. Then there's no monopoly and plenty of competition: a huge number of broadcast radio stations, M-Sirius satellite radio, your iPod, etc., etc.

It seems to me that this argument is empirically right. I pay a monthly fee for satellite radio because I'm sick of listening to almost-nothing-but-ads broadcast radio. If broadcast radio played fewer ads, I might not. That might reduce the profitability of broadcast radio, but, hey! that's competition.

But there's a broader point here. When I took antitrust law from Robert Bork at Yale Law School 40 [!] years ago, the thought struck me that the result of every antitrust monopoly case hinges on market definition. Define a market narrowly, as the Supreme Court was doing in the 1960s, and every merger creates a monopoly. Narrowly as in, shoe stores in northern St. Louis County, Mo. Define the market broadly, and nothing creates monopoly. As in footwear. In some sense, everything competes with everything else. The Gap and Barnes & Noble and Occitane and Starbucks are all competing for the favor of the consumer who can afford to spend $20 to $50 on some unnecessary item on a Saturday afternoon shopping trip. And if every business is in competition with every business, how can anyone have a monopoly?

Bob Bork may have inspired such thoughts. Most of us in his class thought his antitrust theories were crazy. He basically said that the government should prosecute price fixing and nothing else; the market will take care of things. He said that the most useful course he took while he was in the University of Chicago Law School was price theory--a dose of Chicago school free market economics.

Those were fringe views then. Now, they're pretty much mainstream. Markets work; economics is the one academic discipline that has moved to the right in the past 40 years. In the 1960s, the government won antitrust cases when one company with a 4 percent market share merged with another that had a 2 percent market share. The government doesn't bring cases anymore.

I say let the XM-Sirius merger go ahead. Currently, we have two satellite radio companies that are both losing money. But one satellite company might make a profit, competing against broadcast radio, iPods, and all those other devices that can transmit music to your ears.

By Michael Barone