The litmus tests for Michael Mukasey's conservative critics.

The litmus tests for Michael Mukasey's conservative critics.

The litmus tests for Michael Mukasey's conservative critics.

The law, lawyers, and the court.
Sept. 17 2007 6:13 PM

Independence Daze

The litmus tests for Michael Mukasey's conservative critics.

Michael Mukasey with President Bush 
Click image to expand.
Michael Mukasey with President Bush

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.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

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.

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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."

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You may remember that these same groups once panicked that Harriet Miers would be soft on abortion and urged that Sam Alito would be, too. They did so after close readings of every text or speech written by these nominees that included the word abortion, then declaiming upon the implications for the pro-life agenda. As I've argued before, this sort of litmus test tells one only whether a nominee would violate any and every statute, constitutional provision, and canon of judicial ethics to overturn Roev. Wade. In other words, it tells you almost nothing.

In the 1994 case Burch points to, Dong v. Slattery, Mukasey denied political asylum to a Chinese man who feared political persecution by Chinese authorities because he and his wife had violated China's one-child, forced-abortion rule. Mukasey simply upheld the immigration board's denial of asylum based on a clear reading of the immigration guidelines. As Andrew McCarthy observes, to do otherwise would have been activist folly. The decision was hardly a referendum on the merits of Roe.

So there you have it: Some conservatives object to Mukasey because he's an outsider (read: independent), others because he's not a pro-life judicial activist (read: independent), and still others because he is respected by some liberals (read: independent). As criticisms go, these objections say more about the critics than about Mukasey. Except they suggest that he may not be the worst choice to restore independence to the Justice Department. Regardless of whether he'll help Congress ferret out where the bodies are buried there, at least he does not appear likely to grab a shovel and start digging deeper.

Meanwhile, many of the liberal pundits who are voicing support for Mukasey celebrate him as a "lawyer's lawyer." Eh. They once said that of Chief Justice John Roberts, and I don't think any of us know what that phrase even means anymore. Still, let's take comfort in the fact that the one issue on which Mukasey spanked President Bush in the Jose Padilla case involved the administration's efforts to deny Padilla access to a lawyer.

As he wrote back in December 2002, "Padilla's statutorily granted right to present facts to the court in connection with this petition will be destroyed utterly if he is not allowed to consult with counsel." Which suggests that at the very least Judge Mukasey understands the value of a lawyer. And if he grasped so well why Padilla needed one, he can surely appreciate why now, more than ever, the country needs one, too.