Even before confirmation hearings for the next Attorney General were scheduled, Democrats on the Senate Judiciary Committee gave signs that Bush’s nominee–former federal Judge Michael Mukasey–would sail through the process. “My view [is] that Judge Mukasey has the potential to be a consensus nominee,” said Senator Charles Schumer. Mukasey may have more of an independent streak than former Attorney General Alberto Gonzales, but the Senate cannot afford to treat Mukasey’s nomination as a done deal. The next Attorney General will inherit a severly damaged Justice Department, embroiled in the Attorneygate scandal and controversies over torture, rendition, wiretapping and other “war on terror” tactics.

With these concerns in mind, The Nation asked ten of the country’s leading legal minds what they would ask Mukasey during his confirmation hearings.

1. As Attorney General, will you independently review the constitutionality of ongoing programs, such as electronic eavesdropping and CIA rendition camps? If so, what will you do if you conclude that they are unconstitutional?

Erwin Chemerinsky, professor of law and political science at Duke University

2. At the present time, the Justice Department’s Inspector General has commenced several investigations into the conduct of the former Attorney General of United States Alberto Gonzales and others with respect to testimony given before the US Senate and the firing of US Attorneys. With respect to these investigations, would you promise (a) that you would not in any way interfere with, hinder or obstruct these investigations–including promising not to fire or remove the present inspector general until he completes these investigations–even if you were so instructed by the President of the United States or anyone acting at his behest, and (b) would you promise to appoint a special prosecutor who is a nonpartisan and well respected law enforcement official to handle any finding by the inspector general or any other office in the Justice Department of possible criminal conduct by Mr. Gonzales?

Former Congresswoman Elizabeth Holtzman, author of The Impeachment of George W. Bush.

3. Will you insist on enforcement of subpoenas issued by Congress?

Herman Schwartz, professor of law at American University and author of Right Wing Justice: The Conservative Campaign to Take Over the Courts.

4. During your conversations with administration officials, did they indicate that you would have the ability to make personnel decisions free from White House interference?

Nan Aron, president of the Alliance for Justice

5. Even before your nomination, but surely in your preparation for this hearing, you would have become aware that the Department of Justice under Alberto Gonzales made some decisions in connection with the war on terror that have created significant controversy within the Department and outside it. Are there any of these decisions with which you disagree? If so, tell me two or three of them and how you would decide differently.

Stephen Gillers, professor of law at New York University

6. Can you think of any circumstance under which it would be lawful to torture a prisoner in US custody?

Marjorie Cohn, president of the National Lawyers Guild

7. When are you going to issue a government edict saying that evidence and photographs of US personnel torturing suspects should not be classified as secret?

Clive Stafford Smith, legal director of Reprieve and author of The Eight O’Clock Ferry to the Windward Side (NationBooks, 2007)

8. There has been discussion in recent years about the propriety of the US Supreme Court taking into account, and even mentioning other countries’ laws, custom and precedents in the course of the US Supreme Court’s own decisions. Do you have any problem with such a practice?

Victor Navasky, publisher emeritus of The Nation

9. What is your understanding of the latitude that the Authorization of Use of Military Force passed to authorize the Iraq War in 2002 gives to the administration currently to attack Iran?

Garrett Epps, professor of law at the University of Oregon and author of To an Unknown God: Religious Freedom on Trial (St. Martin’s).


Material witnesses warrants were used in the aftermath of 9/11–and for a substantial length of time thereafter–as a means of detaining suspects in the absence of sufficient evidence of criminal guilt. Perhaps predictably, the pattern of arrests and detentions manifested obvious racial and religious regularities. In some case, such as that of Oregon lawyer Brandon Mayfield, the evidence suggests a rush to judgment on the basis of a religious identity (Muslim).

What measures would the you take to address the possible abuse of “material witness” warrants to sustain prolonged detentions in the absence of any reasonable suspicision of criminal activities? What measures would you take to ensure that domestic counterterrorism policing and prosecution strategy does not replicate and perpetuate invidious religious and racial biases?

Aziz Huq, Deputy Director of the Justice Program at the Brennan Center.

11. When it comes to civil rights enforcement, the Justice Department has been noticeably absent or on the wrong side. The Department, which now lacks a Senate-confirmed Assistant Attorney for Civil Rights, upheld restrictive voting schemes in Georgia and Texas. This month, in his ruling prohibiting the Bush Administration from implementing a new immigration enforcement rule, US District Judge Charles Breyer found there was a serious question that the Department of Homeland Security improperly encroached on the authority of the Department to make a determination on immigrant civil rights. What three things will the Attorney General do to restore the authority and credibility of the Civil Rights Division?

John Trasvina, president and general counsel, Mexican American Legal Defense and Educational Fund