President Bush’s nominee to succeed the most lamentable Attorney General of the United States since Warren Harding’s scandal-plagued accomplice, Harry M. Daugherty, is undoubtedly capable of doing a better job than Alberto Gonzales.
But, with all due respect to the president’s pick, retired Federal Judge Michael Mukasey, a randomly-selected recent law school graduate — provided that the degree is not from an institution affiliated with Pat Robertson’s legally-embarrassed “Preeminent Christian University” — would make a better Attorney General than Gonzales. Similarly, a randomly-selected second-year law student would have been a better choice than Bush’s preferred replacement for Gonzales, former Solicitor General Ted Olson, whose role in the Bush-v-Gore manipulation of the Florida presidential election recount of 2000 marks him as an even more dangerous partisan than the exiting AG.
There is real danger in settling for a nominee who looks good by comparison with Gonzales or Olson. While pressure from Democrats on the Senate Judiciary Committee forced Bush to select a more mainstream nominee than he would have liked, Mukasey’s record calls for intense scrutiny by the committee and the full Senate.
On the plus side, the former federal prosecutor and jurist is a more independent player than Gonzales, who was saw himself not as the nation’s chief law-enforcement officer but as Bush’s personal lawyer. And, though Mukasey is a conservative, his reasonably measured decisions suggest that he is not inclined toward the radical judicial activism favored by Federalist Society firebrand Olson.
But Mukasey is something less than a rule-of-law man when it comes to Constitutional matters. As a contributor to the right-wing editorial pages of the Wall Street Journal, the retired judge has written several articles that suggest he would have trouble balancing civil liberties and national security concerns.
For instance, in a May 10, 2004, op-ed, which was published as the debate about fixing fundamental flaws in the Patriot Act was heating up, Mukasey defended of some of the act’s most extreme excesses and dismissively told critics to avoid what he termed “reflexive” or “recreational” criticisms of it.
In an op-ed published just last month, as something of set-up piece for his nomination by Bush, Mukasey argued against transparency and the application of basic criminal-law standards in terrorism prosecutions like that of Jose Padilla, a U.S. citizen designated by the Bush administration as an illegal enemy combatant. As the judge who issued the first ruling in Padilla’s challenge to his detention, Mukasey ruled that the government has a right to imprison the suspect without charging him with a crime. To his credit, however, Mukasey also granted defense motions to allow Padilla to meet with his attorneys and to speed up appeals regarding the legitimacy of the Bush administration’s “enemy combatant” designation.
By any reasonable measure, Mukasey’s is a complex record that demands intensive scrutiny and – considering the Bush administration’s sorry history of disregarding the Constitution – aggressively skeptical questioning by committee members of both parties.
As U.S. Sen. Russ Feingold, the Wisconsin Democrat who chairs the Judiciary Committee’s subcommittee on the Constitution notes, “The next Attorney General will take over a Justice Department plagued by scandal and low morale. As Attorney General and White House Counsel, Alberto Gonzales disregarded statutes, treaties and the Constitution to help this administration consolidate more and more power in the executive branch, and he misled Congress and the American people repeatedly. As a result, Congress and the public now lack confidence in the administration’s commitment to impartial justice. The new Attorney General must make it a top priority to repair the damage done by Alberto Gonzales.”
“To that end,” argues Feingold, “Judge Mukasey must demonstrate that his first loyalty will be to the rule of law, not to the President. In particular I will be interested in his views on executive power and the need to protect the rights of law-abiding Americans while fighting al Qaeda and its affiliates aggressively. I will also expect Judge Mukasey to commit to reversing the course set by Alberto Gonzales by fully cooperating with ongoing congressional oversight of this administration’s misconduct, and by always telling Congress and the public the truth, starting with his confirmation hearings. Congress, the Department’s many committed employees, and the American people deserve nothing less from their Attorney General.”
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