Poor Bill Kristol. His followers' contempt for liberals is so extreme that he needed to bracket both ends of his weekend endorsement of President's Bush's new pick for attorney general by urging them not to blame Michael Mukasey for the fact that Sen. Chuck Schumer likes him. If the mere fact that liberals such as Glenn Greenwald at Salon, Nan Aron at Alliance for Justice, and my colleague Emily Bazelon do not reflexively loathe him proves to be Judge Mukasey's greatest political liability, we are now so far gone down the road of hysterical partisanship that we may never recover.
Kristol's defense notwithstanding, it's evident that Mukasey's critics on the right are uneasy about matters beyond the respect most liberals have for the former judge. Their real objections reveal a good deal about the larger conservative legal agenda and what's gone wrong with the legal system on their watch.
The very first reports of Mukasey's imminent nomination nodded to some conservative groups' objections: He's not a known quantity, not a Washington insider. He is, in fact, so not a member of the treehouse club that defines the Washington Conservative Legal Establishment that he was passed over for a spot on the 2nd Circuit Court of Appeals on multiple occasions. Recall that one of the things that derailed Harriet Miers' chances at a Supreme Court seat, and arguably Alberto Gonzales' shot as well, was that sense that they were not card-carrying members of the correct legal organizations, and hadn't come up through the proper ranks the way John Roberts and, later, Samuel Alito had.
This conservative insistence that the AG needs to know all 17 twists in the Federalist Society's secret handshake reveals the same toxic thinking that has so damaged the Justice Department in the first place. One of Gonzales' worst sins was that he permitted just such litmus tests for both political and career officials, allowing underlings like Monica Goodling to break the law to achieve those goals in the case of the latter. This is how competent qualified lawyers were replaced by those who had worked on the "right" campaigns, belonged to the "right" organizations, or attended the "right" law schools. The very last thing the president should take into account in replacing Gonzales is whether Mukasey knows the right people or donates to the right groups. Appointing a partisan foot soldier to fix an entity that has been utterly corroded by partisan foot soldiers would have been a dramatic misstep.
At the same time, it's a mistake to think of Mukasey as a renegade outside-the-Beltway badass. Indeed, if "Washington insider" has become a code word for anything, it's code for being simpatico with the president's terror agenda. And while Mukasey isn't a typical Bush/Rove legal choice—no formative years spent in the Reagan Justice Department—he is still strongly aligned with the president in defining and handling the war on terror. That's evident in his recent Wall Street Journal op-ed, which we are all picking over today. (It's a strange rejection of the effort to balance legal due process with safety, from the one terror judge we all believed had succeeded at doing exactly that.) It's equally apparent in a 2004 piece Mukasey penned, enthusiastically defending the Patriot Act—and hurling abuse at librarians along the way. That piece reveals a good deal about Mukasey's presumptions about civil liberties and terrorism: "[G]overnment," he wrote, "is entitled, at least in the first instance, to receive from its citizens the benefit of the doubt. If we keep that in mind, then the spirit of liberty will be the spirit which, if it is not too sure that it is right, is at least sure enough to keep itself—and us—alive."
Another complaint we're hearing from conservatives about Mukasey is that he may be wobbly on the kinds of social issues that matter most for some of the president's ever-dwindling base. Thus Brian Burch, president of the Catholic-based advocacy group Fidelis, began to speak out Saturday against Mukasey, warning that "his federal judicial record has been at times hostile to the issues that we care and have concern about, like abortion."