Time's Allen described Fielding as olive branch despite partisan history, reports of Bush girding for battle

In a January 8 Time.com article that broke the news that President Bush intends to appoint Washington attorney Fred F. Fielding to replace Harriet E. Miers as White House counsel, Time White House correspondent Mike Allen wrote that the selection of Fielding is "a signal that he [Bush] could be open to working more closely with congressional Democrats rather than stonewalling." But Allen did not cite any Democrats for their reaction to a Fielding appointment, much less any Democrats affirming Allen's characterization of the appointment as a "signal" that the White House intends to cooperate more with congressional Democrats. Moreover, Allen made no mention of criticism by prominent Senate Democrats from 2003 over Fielding's involvement in the evaluation of a Bush nominee to the U.S. Court of Appeals for the District of Columbia. Nor did Allen mention reports that Miers was forced to resign because Bush wanted a more combative counsel to handle congressional investigations.

In the span of less than a month in 2003, then-Minority Whip Harry Reid (D-NV) criticized Fielding on the floor of the Senate on four different days for Fielding's role in the nomination of Bush appeals court nominee Miguel Estrada. In a February 24, 2003, Newsday article, reporter Tom Brune reported that Fielding presided over the evaluation of Estrada for the American Bar Association's (ABA) Standing Committee on the Federal Judiciary "in the month after President George W. Bush nominated [Estrada] on May 9, 2001, ABA officials said. That was just weeks after Fielding, who also served as White House counsel in the Reagan administration, vetted executive appointments for Bush's transition team and a year before he helped start the partisan Committee for Justice, records show." Prior to the Newsday article, on February 12, 2003, Reid noted Fielding's connections, calling the "partisan" Committee for Justice, an "effort to pack the Federal bench with extreme judges" and Fielding a "partisan foot soldier." On February 24, 2003, and again on February 25, 2003, Reid noted Fielding's connections to Bush and the Committee for Justice, claiming that "the Bush White House could not have handpicked somebody with better partisan credentials than Fielding to evaluate his DC Circuit Court nominees." Similarly, on March 4, 2003, Reid claimed that "[t]he ABA couldn't have picked a Republican with better partisan credentials than Mr. Fielding." Reid is not the only Democratic lawmaker who criticized Fielding. In a June 15, 2004, press release, Sen. Patrick Leahy (D-VT) (now chairman of the Senate Judiciary Committee), referring to an ABA recommendation for another Bush nominee, recalled "the debacle in which Republican partisan Fred Fielding prepared Miguel Estrada's ABA rating recommendation."

A January 5 Washington Post article reported that Miers' resignation was part of a plan to create a more confrontational legal team at the White House. The Post reported that Bush accepted Miers' resignation "as [Bush] remakes his legal team to prepare for what aides expect to be a sustained struggle with a new Democratic Congress eager to investigate various aspects of his administration. ... Bush advisers inside and outside the White House concluded that she is not equipped for such a battle and that the president needs someone who can strongly defend his prerogatives." Similarly, on the January 4 edition of CNN's The Situation Room, CNN White House correspondent Ed Henry reported that, in addition to the public reason given for Miers' resignation, Henry was "told by other officials privately that there is another big reason for her to leave, and that's because she's mild-mannered and the White House now is looking for a very aggressive White House counsel."

As the Associated Press noted in a January 5 article, one of the tasks of the White House counsel is "to vet potential nominees for openings on the federal bench -- and the Supreme Court." In a May 4, 1985, article in The Nation, Sheldon Goldman, a political science professor at the University of Massachusetts-Amherst, noted the Reagan administration's " 'absolutely extraordinary commitment and diligence' to insure that only pure conservatives are named" to federal courts. At the time, Fielding was both White House counsel and head of the White House's Federal Judicial Selection Committee. The article also noted that Fielding admitted "that the White House screening committee asks all prospective nominees to state their view of Roe v. Wade, the 1973 decision on abortion" in order to "determine the candidate's attitude toward 'judicial restraint.' " Similarly, an excerpt from an article by University of Virginia professor David M. O'Brien in the book The Reagan Presidency: Pragmatic Conservatism and Its Legacies (University Press of Kansas, October 2003) noted that disavowals by Fielding and then-Attorney General Edwin Meese of conducting a "litmus test" of prospective judges on their conservative views:

[Fielding and Meese] satisfied few critics and troubled moderate Republican senators. Indeed, it was the latter who had the toughest time with Reagan's Judicial Selection Committee. And that, perhaps, is one of the best measures of the extent to which the administration placed its own ideological and legal-policy goals above partisan patronage, and at times even above the professional qualifications of potential judicial nominees.

In his Time.com article, Allen's quoted sources included "[a]n official who has been briefed on the impending announcement," "a former colleague of Fielding," and an eight-month-old speech by Harvard professor David Gergen, but no Democrats or liberals weighing in on whether they saw Fielding as an indication that Bush planned to "work[] more closely with congressional Democrats" (although a January 9 New York Times article quoted Rep. Henry Waxman (D-CA), chairman of the House Oversight and Government Reform Committee, expressing hope that Fielding will urge Bush to cooperate: "I'm hopeful that he will understand that the best way to represent his client is to cooperate when the Congress asks for information." )

From Allen's January 8 article:

In a signal that he could be open to working more closely with congressional Democrats rather than stonewalling, President Bush plans to name the widely respected Republican lawyer Fred F. Fielding as White House counsel this week, party sources tell TIME. Fielding, who held the same position under President Ronald Reagan, will succeed the President's friend Harriet Miers, who last week announced her resignation, effective Jan. 31. An official who has been briefed on the impending announcement, which could come as soon as Tuesday, called Fielding "the ultimate Washington lawyer-insider -- he's the man to see."

"He's the guy who helps you defend your position, stick to your principles, but tries to work out a reasonable compromise," the official said. "He's highly partisan, but he's highly regarded by everyone." The idea came from Chief of Staff Josh Bolten, and Administration officials said they regarded it as a savvy choice. The selection of Fielding, a member of the 9/11 commission from 2002 to 2004, comes as the White House is gearing up for a multitude of investigations -- and likely subpoenas -- from Democrats, who took control of both chambers of Congress last week with a vow to pursue aggressive oversight and deny the White House blank checks for Iraq or anything else.