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Independence DazeThe litmus tests for Michael Mukasey's conservative critics.

By Dahlia LithwickPosted Monday, Sept. 17, 2007, at 6:13 PM ET

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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 Roe v. 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.

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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.

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Dahlia Lithwick is a Slate senior editor.
Photograph of Michael Mukasey and President Bush by Jim Watson/AFP/Getty Images. Photograph of Michael Mukasey on Slate's home page by Chip Somodevilla/Getty Images.
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