Michael Mukasey: Looking Good

On Thursday, the Senate Judiciary Committee complete two days of confirmation hearings for Judge Michael Mukasey, President Bush’s nominee to replace Alberto Gonzales.

Mukasey became a federal district judge in 1988 and served for six years as Chief Judge for the Southern District of New York, leaving the job last year.  During his tenure, Mukasey’s court room was the scene of several very high profile cases, including the “Blind Sheik” who was tried for the 1993 World Trade Center bombing, Jose Padilla (the would-be “dirty bomber”), and the battle between developer Larry Silverstein and insurance companies over billions of dollars in claims for the 9/11 attacks.

The hearings were the least contentious confirmation proceedings for a high office that the country has seen for several years.  The congeniality in the room was due in part to Mukasey’s reputation (including among people who lost cases in his court room) and the fact that his nomination was championed by Charles Schumer (D-NY)..

The hearings began with an opening statement by Committee chairman Patrick Leahy (D-Vt.) who seemed most interested in comparing today’s political situation to Watergate, then moved to the senior Republican member, Arlen Specter (R-Penn.), who characterized the hearing as “approximating the importance of a Supreme Court confirmation”.  Senator Schumer introduced Judge Mukasey to the committee in a rather long and highly complementary speech which Leahy tried to cut off several times.  After a few words by Joseph Lieberman (I-Conn.) reminiscing about law school with Mukasey, Mukasey read his prepared opening remarks, including making clear that “protecting civil liberties…is a part of protecting national security”.

Many of the questions asked related directly to issues which have been the source of tremendous political division in the nation for several years, especially in the area of executive power.

Senator Schumer asked “If confirmed, will you have the courage to look squarely into the eyes of the President of the United States and tell him ‘no’ if that is your best legal judgment?”  Judge Mukasey responded “Absolutely.  That’s what I’m there for.”  He also committed to working closely with Congress if confirmed, something several senators were concerned with after describing a “go it along” attitude by Alberto Gonzales.

Senator Leahy suggested that the controversial firing of US Attorneys were purely political moves and implied that the firings were corrupt.  Mukasey said that “partisan politics plays no part in either the bringing of charges or the timing of charges”, that he would avoid bringing politically-related charges close to an election, and that only the highest levels at the Department of Justice would be authorized to take calls from or make calls to elected officials.

Many senators asked about issues of prisoner interrogation and torture. Mukasey’s answers were interesting, on the one hand saying that he did not support coerced testimony and on the other hand that he didn’t know exactly what waterboarding was and didn’t know whether it would be considered torture.

Senator Leahy continued the line of questioning, asking whether the president can “override domestic and international laws prohibiting torture (or) to immunize anybody who commits torture”. Mukasey answered that, “Torture is unlawful under the laws of this country….but beyond all of those legal restrictions, we don’t torture not simply because it’s against this or that law or this or that treaty. It is not what this country is about…it’s antithetical to everything this country stands for..”  Mukasey added that the Bybee memo was “worse than a sin.  It was a mistake.” 

In response to further questioning, Mukasey said that Congress had some authority to regulate interrogations but that it was a complex issue.  When asked by Senator Herb Kohl (D-WI) whether “Congress has constitutional authority to prohibit torture”, Mukasey replied “Yes, they do and they have.”

Similarly, when asked by Leahy about whether the president can “immunize illegal surveillance on Americans”, Judge Mukasey anwered “the president can not immunize illegality” but then proceeded to describe the complexity of the FISA statute including President Carter’s AG’s view that “the limits of FISA do not reach to the limits of presidential authority.”

Regarding the terrorist detention facility at Guantanamo Bay, Cuba, Judge Mukasey acknowledged that it “has substantial problems, both of reality and perception”, in large part because in a bureaucratic sense “nobody owns it.” He also said he was not prepared to recommend that Guantanamo be closed since there was no reasonable alternative.

Later, relating to the Padilla case and certain Guantanamo detainees, Mukasey said that “it is lawful for the president to detain people, even Americans, captured on the field of battle, indefinitely….It may not pay to act on this principle just for the sake of the principle if it cuts off our nose to spite our face.”

Senator Durbin (D-Ill.) asked about the War Powers Act to which Judge Mukasey said that every president has argued that the Act is unconstitutional and need not be obeyed. However, both sides realize that “push should not come to shove for certain issues.  Sometimes people walk away thinking ‘we could have beaten them’ but it’s better that we don’t find out.”

Even when giving answers that the senators didn’t like, especially Russ Feingold (D-Wis.) and Durbin, the Democrats were particularly gentle with this Bush nominee. For political junkies looking for the bread and circuses of the usual (awful) confirmation hearings, the Mukasey sessions were (“Holy narcolepsy, Batman” ) boring.  For which we should be grateful. 

Even the hyper-partisan Senator Leahy knows that the political calculus does not favor obvious obstructionist behavior at a time when such an important part of our government is in need of a leader like Judge Michael Mukasey, and the sooner the better.