President Bush on Monday nominated former US District Court Judge Michael Mukasey to replace Alberto Gonzales as Attorney General. The move surprised Democrats and Republicans alike who had been expecting former Solicitor General and conservative legal icon Ted Olson to get the nod.
It appeared Olson was the front runner until Majority Senate Leader Harry Reid declared him unconfirmable. Sources in the White House indicated they had no stomach for a protracted fight, especially since Mukasey appeared as a solid alternative with views on national security that were compatible with the Bush administration.
Judge Mukasey’s credentials are not in question. He was a federal prosecutor in the Southern District of New York and later was appointed to the federal bench by Ronald Reagan. He served for 18 years, six as Chief Judge. Best known for presiding over the trial of blind Sheikh Omar Abdel Rahman and eleven co-defendants in the 1993 World Trade Center bombing he gained high marks from outside observers and the Second Circuit panel which heard the appeal. In the Jose Padilla case he upheld the government’s right to designated Padilla an enemy combatant although he instructed the Bush administration to allow him access to legal counsel. He has written in support of the Patriot Act. Like Olson, Mukasey serves on Rudy Giuliani’s Legal Advisory team.
Some conservatives were disappointed that Bush had shied away from a fight with Senate Democrats. Even the Washington Post editorial Board expressed dismay that Democrats might get the notion that they “have the right to usurp the president’s role in choosing a nominee who shares his — or possibly even her- ideology and priorities.”
Professor John Eastman of Chapman School of Law explained that many conservatives bristle at the notion that Democrats are insistent that the president select someone who is not “political” but who is “independent.” He explains: “I thought we’d had enough of independent prosecutors after the shoe had been on both feet for a while—Iran-Contra in the 80s, Whitewater and Lewinsky in the 90s. I’d stick with the model the founders actually provided in the Constitution — a single executive, responsible for executing the laws, with cabinet officers who report to him.”
Some conservatives seemed spooked by a candidate whom New York Senator Chuck Schumer had suggested as a “consensus” candidate for the Supreme Court and who Nan Aron, leader of the liberal forces against recent conservatives judicial nominees, praised as a better alternative than other potential picks. Nevertheless, GOP presidential contenders and respected conservative legal scholars leapt to Mukasey’s defense.
Andy McCarthy, Fellow at the Foundations for Democracies and lead prosecutor in the 1993 World Trade Center bombing case, acknowledges that conservatives should exercise “prudent suspicion” but credits Mukasey with doing a “fabulous” job in overseeing one of the first significant terrorism prosecutions, which required him to address novel issues of law, balance national security and civil liberties and manage remarkable security concerns for the courthouse, attorney, witnesses and jurors.
Rudy Giuliani, long time friend and fellow assistant US Attorney form the 1970’s who previously named Mukasey to his Legal Advisory panel, released a statement predicting that “he will meet and exceed all expectations in his new role.” In a radio interview he explained that “of all the lawyers I worked with I’d have to put him right near the top as one of the brightest and smartest. And the other thing about Michael, which I’m sure commended itself to the President, was Michael is a man of total, absolute integrity.”
That view was echoed by former prosecutors and lawyers who have worked closely with him. Howard Wilson, a highly regarded litigator and former assistant US attorney and chief of both the civil and criminal divisions of the Southern District, for example says he is a “very, very smart” man and reiterates praise for his handling of the 1993 World trade Center case, noting that he “paid a heavy price and had to be protected for years and years [and] U.S. Marshals literally lived in his house.” Wilson, who has been friends with Mukasey for decades firmly, remarks that Mukasey’s views on the balance between national security and civil liberties make him “the kind of judge conservatives would like.”
Ed Whelan, President of the Ethics and Public Policy Center, responded in a blog to concerns about Schumer’s enthusiasm noting that although Schumer previously listed him as a potential Supreme Court nominee, it was typical cynical politics rather than a perceived sympathy with Mukasey’s views: “Schumer was promoting as Supreme Court candidates five individuals who he knew had no serious prospect of ever being nominated so that he could later paint himself as having been reasonable.”
Republican Minority Leader Mitch McConnell left no doubt that conservative Senators found him generally acceptable and expected a prompt confirmation process: “Judge Mukasey possesses the qualities required to lead the Department of Justice, the qualities my Democratic colleagues said they want: experience, integrity, and intellect. His many years on the bench and as a prosecutor, particularly his experience handling complicated terrorism cases, is certainly welcome at an organization that plays such a key role in our nation’s anti-terror efforts."
“Democrats have rightly noted that the President gets to choose his own cabinet and that the country ‘can’t afford to wait’ for a new Attorney General. If they really mean it, they will evaluate Judge Mukasey based on his record of service, not their own political agenda. I will review his record and qualifications, and I encourage my colleagues to complete a fair and comprehensive review of their own, without political calculations and without delay. The Senate needs to promptly and fairly consider his qualifications and vote in a timely fashion.”
Senator John Kyl sounded a similar theme in his press release: ““His knowledge of the legal system, his commitment to justice, and his consummate fairness and integrity won him the respect of his colleagues and observers of the courts. These qualities, combined with his extensive experience in national security and terrorism cases, make him an ideal candidate for attorney general. He will bring honor to the post and ensure that the Department of Justice remains dedicated to upholding the rule of law and ensuring the ‘fair and impartial administration of justice for all Americans.’” He likewise warned his Democratic colleagues to proceed expeditiously.
Finally, for those concerned that the Justice Department needs a strong administrator Mukasey boasts six years as Chief Judge of the Southern District, a role in which attorneys credit him with administrative and managerial skills needed to navigate in a collegial manner around federal judges who often view themselves as autonomous sovereigns. McCarthy says that anyone who doubts his managerial skills “has never had to manage 40 federal judges,” noting that Mukasey learned the fine art of “getting people to do things they didn’t want to do” although the Chief Judge lacks real authority over his fellow judges.
Why would an esteemed judge be willing to subject himself to hours of confirmation histrionics by the Democrats? McCarthy says at bottom Mukasey is “a patriot –he cares about the country, the court and the Justice Department.” Although little time will remain after his confirmation, key issues including the sunsetting of recent revisions to the Foreign Intelligence Surveillance Act and potential Supreme Court consideration of the rights of enemy combatants lie ahead.
So on balance, conservatives may be deprived of another dramatic confirmation fight but with barely more than a year to go the Bush administration it appears they may have a respected and conservative figure atop the Justice Department, a distinct improvement by any measure over the last man to occupy that post. Whether Democrats will process his confirmation expeditiously or whether all their speeches about finding an esteemed, competent Attorney General were just public relations ploy will be clear as Judge Mukasey’s confirmation moves ahead.
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