Measuring MukaseyHe's no pushover, but will Bush's pick for AG rein in the administration on executive power?
Posted Monday, Sept. 17, 2007, at 11:54 AM ET
By what yardstick are we to measure Bush's pick for the next attorney general? We know that this president only chooses avowed and proven conservatives for positions like this one. So, the more pressing questions are more lawyerly ones: Will Bush's new nominee roll over whenever asked, a la Alberto Gonzales? Will he dare to rein in the administration on executive power?
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StumbleUponMichael Mukasey, Bush's pick to be announced this morning, is nobody's patsy. As a federal district court judge for 20 years, including service as chief judge of the ego-filled Southern District of New York—where he had the near-universal respect of judges and lawyers—Mukasey knows how to run his own show. Federal judges are the lords of their small fiefdoms; bending and scraping isn't in their repertoire. Plus, Mukasey, 66, is a Reagan appointee whose major political tie is not to President Bush for a few months, but to presidential hopeful Rudy Giuliani. If he doesn't agree with Vice President Dick Cheney and his counsel, David Addington, Gonzales' past minders, he's not going to go along with them. From a telling essay that Mukasey recently wrote, it's already clear that he doesn't share Cheney's view that the best law is law the president makes with as little input from the other branches of government as possible.
Nor is he going to put up with the partisan shenanigans that made a shambles of Gonzales' DoJ. He'll enter with the tentative respect of the career lawyers who are the backbone of the Department of Justice, though he'll ultimately have to prove himself. Mukasey is best known for presiding over the 1995 trial of Sheikh Omar Abdul Rahman and co-defendants for their plot to blow up the United Nations and other targets. The 1995 terrorists got convictions and lengthy sentences. Mukasey got a 24-hour bodyguard, a real sacrifice of privacy.
I remember the bodyguard from a workshop on sentencing at Yale Law School that I attended with Mukasey several years ago (he was a distinguished guest; I was a measly student). I also remember Mukasey as tough—smart and open-minded, but at bottom, a law-and-order man. As one law professor puts it, he comes across as "very hard-nosed, conservative at the core. Probably less enamored of executive power than the real Kool-Aid drinkers, but a big fan of prosecutorial power."
Which leads me to Mukasey's recent essay, published in the Wall Street Journal. (Did he write it with half an eye on the AG job? I can't help wondering.) He argued that the prosecution of Jose Padilla—which Mukasey handled until his retirement from the bench last year—demonstrates that federal courts should not try terrorists. Never mind that after the government jerked Padilla in and out of the federal system and reportedly subjected him to serious abuse, he was convicted by a jury on charges that bore little relation to the allegations that former Attorney General John Ashcroft originally—and so publicly—made against him. According to Mukasey, Padilla's case does not stand for the victory of security concerns over civil liberties in federal court, but rather shows why "current institutions and statutes are not well suited" to terrorism cases. The rules for ordinary criminal defendants—that is, regular old constitutional law—should not apply to bad guys "who have cosmic goals that they are intent on achieving by cataclysmic means."
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