The late Rex Lee was perhaps the most brilliant person I've ever had the pleasure of knowing. Lee studied first at Brigham Young University, then at the University of Chicago Law School, where he broke all the school's academic records. Following graduation, he served as law clerk for Supreme Court Justice Byron White. He then held the position of Assistant Attorney General during the Ford Administration. Ronald Reagan selected Rex Lee to be Solicitor General in 1981. As Solicitor General, Lee argued 30 cases before the U.S. Supreme Court. He won 23. During his career both in and out of government, he argued 59 cases in all before the Court.

I last saw Rex Lee in the mid '90s at Gonzaga University. The Rev. Pat Ford, an admirer of Lee, had brought him to the campus to speak. I had heard that Rex was suffering from a serious disease. That night, the audience could tell that he was laboring physically; his mind, though, was as sharp as ever. Sadly, a few months later he died, at age 61.

President Bush's nomination of Alberto Gonzales to be our country's next Attorney General called to my mind Rex Lee, whose character, viewed in comparison, serves to convince me that Gonzales should not be confirmed. Gonzalez is no doubt very able: He has a compelling personal story and he's personable. But he's no Rex Lee, and that's the problem. Rex Lee had established himself professionally before he came to the attention of the Reagan administration. Gonzalez owes his entire career to George W. Bush. Lee balanced his party affiliation with his internal moral compass. Gonzales has never done that. Rex Lee was a lifelong Republican, but he was no sycophant. Alberto Gonzales has shown himself to be nothing other.

At the time he left the job he called "the best lawyer job in America," Rex was on a roll. He had established himself as one of the finest solicitor generals ever. Several months after his tragic death in 1996, a memorial service was held in Washington, D.C., for his many colleagues and friends who couldn't make the funeral that had been held in Utah. Five justices attended. Sandra Day O'Connor said of Lee, "Knowing him was one of the greatest privileges of my life. Remembering him will be one of the easiest." She recalled that just an appearance by Lee before the court generated excitement and expectation. His good friend, Ted Olson, who would later become Solicitor General, said, "When Rex stood up, the court always seemed to change. It became more animated, almost excited."

So why did Lee leave this most beloved position? He left because Reagan's Attorney General Ed Meese pressured Lee to bring cases before the Court that, in Lee's mind, were all about a partisan agenda. Justice O'Connor recalled that Lee, on readying to leave, said: "I'm the Solicitor General, not the Pamphleteer General."

Gonzales, I fear, will be a Pamphleteer General -- or worse. Criticism has been directed at the memorandum that Gonzales wrote as Bush's chief White House counsel giving the President the green light to ignore the Geneva Conventions if he so chose. (And would anyone seriously argue that that the green light wasn't shining all the way to Abu Ghraib prison?) Gonzales attempted to deflect this morally disastrous action by pointing out that he was only acting as Bush's attorney, whereas when he is Attorney General he will act differently. Why is this a defense? Gonzalez is either being disingenuous or oblivious. And either character trait should disqualify him.

Nor should we be surprised at Gonzales' White House performance; after all, for the better part of a decade, he performed the same way for Bush in Texas. Then-Gov. Bush executed 162 prisoners. Let's put this number in perspective. Between 1977 and 2003, Texas executed a grand total of 313 prisoners. This number is obscene enough. America's second bloodiest state, Virginia, could only manage 89 over that span. But of this number, 313 over a period of 26 years, George W. Bush executed over half of them in just six years! Imagine.

What's worse, at the time he was casually signing these death warrants, research had clearly shown that not only was the death penalty system deeply flawed as simply a matter of due process and equal protection, but that DNA evidence was showing that a good number of prisoners on death row weren't even guilty. Wouldn't you think that a basic sense of decency, even simple curiosity, would have caused Bush to hold up on a few? But if anything, he accelerated the mayhem. And who made all this possible? Who rationalized every death warrant? None other than Alberto Gonzales, who, we can presume, was smart enough to know better. That's the real problem.

Rex Lee would not have been a party to crass actions that took the form of political pandering and demagoguery presented as "decisiveness." As did other principled Republicans, such as Elliot Richardson and William Ruckleshaus (who quit rather than fire Watergate Prosecutor Archibald Cox) Rex Lee would have told Gov Bush to get another boy. My worry is that our President has gone and done just that.

Publication date: 1/20/04

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About The Author

Robert Herold

Robert Herold is a retired professor of public administration and political science at both Eastern Washington University and Gonzaga University. Robert Herold's collection of Inlander columns dating back to 1995, Robert's Rules, is available at Auntie's.