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jurisprudence: The law, lawyers, and the court.

Rebound RelationshipThe Senate runs into the arms of Michael Mukasey.

By Emily Bazelon
Posted Wednesday, Oct. 17, 2007, at 7:01 PM ET

(Continued from page 1)

He can't, because he doesn't have to. The senators are in Gonzales recovery and they will go for anything just short of lying, forgetting, and stonewalling. Sen. Russ Feingold, D-Wisc., asks some of the day's best questions. But then comes the smooch: "I don't agree with everything you say, but I will certainly say that this is a much more responsive nominee than the previous witness." Everything is relative: Mukasey speaks in the ringing yet calm tones of the supremely confident trial judge he was until his recent retirement. He doesn't say black is white. And so he's gold. It doesn't matter that the senators have gained few, if any, concrete assurances about indefinite detention, warrantless surveillance, or torture, in the usual meaning of the word.

What the senators get in exchange for their deference is the nominee's reassurance that Vice President Dick Cheney and his counsel, David Addington, are no longer going to run the Justice Department while the attorney general sits by. You can feel the institutional sigh of relief as Mukasey makes clear that he's not planning constant end runs around them in the name of expanding the president's authority. Dianne Feinstein, D-Calif., asks about Congress' constitutional powers regarding military actions, and Mukasey says, "Congress has to provide the tools to the president. Where the provision of tools begins and the president's powers leave off is not something I ever want to see definitively settled because of a conflict between the two branches." Later, he adds, "Each branch has understood that push can't come to shove with regard to certain issues."

In other words, Mukasey doesn't live solely to make Congress irrelevant. Compared with Cheney and Addington, he's got a lesser appetite for executive power for the sake of power. "Unilateralism across the board is a bad idea," he tells Charles Schumer, D-N.Y. He promises that if DoJ and the president try to establish a separate national security court for the Guantanamo detainees—one that would not be subject to the same constitutional constraints as the federal courts—they'll go to Congress for approval first. The senators will be read in.

Of course, as Mukasey flatly states, he'd have no choice in the matter: Only Congress has the power to establish new courts. So how meaningful are his ringing truths? What will change because Mukasey has said, calm and clear, "It is unlawful to subject detainees to cruel, inhumane, and degrading treatment?" What's the significance of his saying of Jack Goldsmith's recent book, which strongly criticizes the Gonzales DoJ, "It was superb. I couldn't put it down," or of agreeing that James Comey, the former deputy attorney general, stands for "legal and ethical excellence?"

All of this certainly isn't nothing. It is different from what Gonzales came to represent. Mukasey is putting as much distance as possible between himself and the worst excesses of Gonzales' shell of a department. Attorney General Mukasey will be the boss, not a "potted plant," as Schumer puts it, with relish. The question is how much the new AG will be a boss who agrees with much of what the president wants to do in the time remaining to him. Clues come from Sen. Richard Durbin, D-Ill., who spices up the proceedings when he quotes Mukasey's utterances during an early meeting between the two of them. "You said, 'there's a whole lot of room between pretty please and torture,' " Durbin says. And "you said there could be a point where the president" has the authority to override a statute. And "you said, about Guantanamo, 'they get three hots and a cot there, and better health care than many Americans.' "

Mukasey doesn't look pleased to be reminded of any of those lines. He has since mastered more soothing ones. But if you read what he's written, and look at his record, he sounds like the same self who had Durbin rightly worried. For once, I'm with the women in the pink crowns and T-shirts, the ones who yell out at the end of the morning session, "Bush lies. We torture." It's the reality outside the room that's been missing from the outset. It deserves to come in.