Michael Kinsley is a brilliant writer who, unfortunately, has spawning about four dozen unbearable second-rate imitators. Sometimes, though, it’s like he’s playing a second-rate imitator of himself: “I’m sorry, but I just can’t see how firing eight can be heinous but firing 93 is perfectly OK. Nor can I see—if the issue is neutral justice—how firing someone from your own party is worse than firing someone from the other party.” I can’t imagine that Kinsley can’t actually see the difference here. The issue, obviously, isn’t the crude quantity of firings, but the nature of the firings.
Bill Clinton beat George H.W. Bush in an election, took office a few months later, and swiftly fired all of Bush’s appointees for US Attorney jobs. He then replaced them with people chosen, in practice, by the relevant local political stakeholders — that state’s Democratic Senators, if any, and a more complicated process in states represented by two Republicans. The message this sends to people working in US Attorney’s offices throughout the country is that . . . US Attorneys will lose their jobs if the partisan control of the White House switched. George W. Bush, by contrast, fired a handful of US Attorneys who had displeased the Bush team’s political fixers, under circumstances where (contrary to historic practice) the White House got to hand pick their successor. The message this sends to federal prosecutors throughout the land is that US Attorneys’ are now considered part-and-parcel of George W. Bush’s political team and that those who fail to act accordingly will be sacked.
The implications of the two actions are entirely different. There’s no indication what Bush did was illegal. Rather, he operated within his legal discretion. We grant the president a certain amount of discretion, however, primarily on the theory that if he uses that discretion in an abusive or unwise manner, his opponents will make political hay out of it.
A world in which there’s 100 percent turnover of US Attorneys when partisan control of the White House switched, but who otherwise can expect to continue in their jobs as long as they maintain basic standards of conduct, has no particular implications for the neutral administration of justice. A world in which US Attorneys are subjected to the day-to-day whims of the West Wing has completely different implications.