Some thoughts on the new AG nominee, Michael Mukasey

(Topical enough for the afternoon? Hello, Fall.
Sorry I’m late with this, crew…

(FP’ed at 12:50 pm, PDT, September 17, 2007) – promoted by exmearden)

First, I’ll confess a minor bias in favor of federal judges.  I’ve clerked for federal judges, and I’ve had personal interactions with quite a few of them.  By no means are they all perfect, but compared to the politicians from the other two branches of government, I think they deserve a much higher degree of regard.

That said, I think liberals could do much, much worse than Michael Mukasey as AG.  He’s not an idiot like Gonzo, and he’s not a partisan hack like Ted Olson or Lawrence Silberman.

First, and most importantly, Mukasey is not stupid.  This guy spent 19 years as a federal judge in the Southern District of New York, and was chief judge for the last six.  SDNY is one of the most critical districts in the country, and any district judge sitting in that district for 19 years handles a wide variety of complex and high-profile cases.  Mukasey handled several high-profile, complicated trials quite well, and that is no small feat, regardless of political persuasions.

Second, I think he is likely to exercise a much greater degree of independence than most likely Bush nominees.  Independence comes with the territory of being a solid federal judge.  Despite what conservatives say, most federal judges do actually feel bound by established law, and do their best to follow it when the guidance is clear.  (Of course, when the established law is unclear, then things can get messy).

I took a look at some of Mukasey’s opinions, and found some examples to back up this assessment.  For one small example, check out United States v. Lindauer, 448 F.Supp.2d 558 (S.D.N.Y. 2006), one of his last opinions.  In a criminal prosecution for acting as an unregistered agent of Iraq, the government moved to forcibly medicate the defendant to render her competent to stand trial.  From the court’s standpoint, it was largely a judgment call, and any judge predisposed to act favorably towards the government easily could have granted the motion.  But Mukasey denied it. 

It wasn’t a ground-breaking opinion, but this sort of ruling suggests to me that Mukasey was capable of acting independently — as a federal judge anyway.  That’s no guarantee he’ll stand up to Bush when the time comes, because Attorneys General aren’t members of the judiciary, but I think he’s noticeably better than any of the other names being floated.

Is he still conservative?  Sure.  But Bush isn’t about to appoint Ramsey Clark any time soon.  And until you win the Presidency, you’re more-or-less forced to take what you can get.  The Justice Department is in shambles right now, and the country can’t afford to reject every nominee Bush makes.


Here’s Greenwald’s take, which is a little more in-depth:

Greenwald on Mukasey

And Merritt:

Merritt on Mukasey

Both of them are pretty accurate, I think.


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  1. about Judge Mukasey, I must conclude that he is as good a nominee as we might expect from Bush, and is, in fact far better than most potential candidates.
    This, from the NYT of 9/16/07, represents my conclusion:

    Unlike Mr. Gonzales, Mr. Mukasey is not a close confidant of the president. Nor is he a Washington insider. But people in both political parties say he possesses the two qualities that Mr. Bush has been looking for in a nominee: a law-and-order sensibility that dovetails with the president’s agenda for the fight against terror, and the potential to avoid a bruising confirmation battle with the Democrats who now run the Senate. With 16 months left in office, Mr. Bush can ill afford a drawn-out confirmation fight.

    One of those Democrats, Senator Charles E. Schumer of New York, who led the fight to oust Mr. Gonzales, issued a statement on Sunday evening praising Mr. Mukasey – a suggestion that Democrats, who are already challenging Mr. Bush over the war in Iraq, have little appetite for another big fight.

    “While he is certainly conservative,” Mr. Schumer said, “Judge Mukasey seems to be the kind of nominee who would put rule of law first and show independence from the White House, our most important criteria. For sure we’d want to ascertain his approach on such important and sensitive issues as wiretapping and the appointment of U.S. attorneys, but he’s a lot better than some of the other names mentioned and he has the potential to become a consensus nominee.”

    We must restore credibility and independence to the AG’s office. Unless confirmation hearings prove otherwise Judge Mukasey appears to be qualified to take on the restoration project.

  2. This does give me pause however (from Greenwald):

    Judge Mukasey’s respect for the Constitution and the rule of law should not be overstated. As part of his ruling that Padilla was entitled to counsel and to contest the factual accusations against him, Mukasey also ruled, very dubiously, that President Bush had the authority to detain American citizens, even those detained on U.S. soil, as “enemy combatants,” and that they need not be charged with any crimes. He thus rejected Padilla’s claim that, as a U.S. citizen, the Constitution barred his incarceration without criminal charges being brought and a conviction obtained in a court of law.

    Yet even with this troubling ruling marring Mukasey’s record, what we need more than anything in the AG’s office right now is a legal professional with a deep respect and appreciation for the proper role of each branch in our Federal system as well as a commitment to restoring the honor and integrity of an office besmirched by the political hack who was his predecessor. 

    Under these circumstances, a former Federal Judge would seem the best choice to take over  in a caretaker role caretaker at Justice for these, the end days of Bush’s disastrous reign.

    • AnnRose on September 17, 2007 at 18:16

    Why would a Federal judge in a job for life leave that to be Bush’s AG for 18 months?

    That makes no sense.  Someone help me understand that.

  3. By Scott Horton, who knows a helluva lot more about this than I do:

    Confirm Mukasey

    Important point:

    Fourth, the Department of Justice faces a crisis of morale and confidence the likes of which it has rarely seen in American history. The only recent parallel was in the months following Watergate, when Gerald Ford chose Edward Levi as attorney general (and that nomination is certainly the closest in modern times to the selection of Mukasey). Mukasey is a man who first made his career as a prosecutor working for the Department of Justice and who was clearly moved, long into his later career, by love for the Department. That makes him a perfect person to address the internal problems of the Department. We face a number of pressing policy issues relating to law and the administration of justice, but they are all somehow dwarfed by the institutional troubles of the Department of Justice. This great ship has been tragically steered into a shoals and it is now in real danger. I think Mukasey is just the pilot to steer it clear again.

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