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Who Is Michael Mukasey?
By Center for American Progress Action Fund
Today, President Bush nominated retired federal judge Michael Mukasey to replace Alberto Gonzales as the nation's Attorney General. Nominated as a New York federal district court judge by President Reagan in 1987, Mukasey has amassed a great deal of experience on national security issues. Over his career, he "presided over the trials of 'blind sheik' Omar Abdel Rahman and others in connection with the 1993 World Trade Center bombing." He also handled the case against Jose Padilla, who was declared an "enemy combatant" by Bush in 2002. In the Padilla case, "Mukasey ruled that the government had the power to make the declaration but found that [he] should have access to his lawyers." Given the the urgent need to repair a disheveled Department of Justice in the wake of Gonzales's departure, Mukasey is a sound pick that should draw bipartisan support. On the most important criteria for the next Attorney General nominee -- whether the person will be "someone who would simply be doing the president's bidding" -- Mukasey has shown an independent streak that should serve him well if he maintains it in his new job. Kenneth Bialkin, a partner at the New York office at Skadden, Arps, said of Mukasey, "There is nobody who has a greater sense of integrity and conscientiousness, and nobody who would be less corruptible than he." It will now be up to the Senate to receive commitments from Mukasey that he understands what being an independent Attorney General entails, the concept of checks and balances, and the need to cooperate with congressional oversight.
A RECORD OF STANDING UP TO BUSH: Sen. Charles Schumer (D-NY), who had previously recommended Mukasey to the White House as a Supreme Court pick, said, "While he is certainly conservative, 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." Salon's Gleen Greenwald writes that in the Padilla case, "Judge Mukasey repeatedly defied the demands of the Bush administration, ruled against them, excoriated them on multiple occasions for failing to comply with his legally issued orders, and ruled that Padilla was entitled to contest the factual claims of the government and to have access to lawyers." After the Bush administration resisted his order that Padilla be granted access to counsel, Mukasey sternly wrote in a strongly-worded ruling (just a few days prior to the initiation of the Iraq invasion), "Lest any confusion remain, this is not a suggestion or a request that Padilla be permitted to consult with counsel. ... It is a ruling -- a determination -- that he will be permitted to do so." One of Padilla's lawyers, Donna Newman, said, "I admire him [Mukasey] greatly." Greenwald writes, "Whatever else may be true about him, then, Judge Mukasey was more than willing to defy the Bush administration and not be intimidated by threats that enforcing the rule of law would prevent the President from stopping the terrorists."
CONCERNS ABOUT MUKASEY: While Mukasey is a qualified nominee who is certainly a better choice than other names that have been floated, there are still issues of concern for progressives. Mukasey's respect for the Constitution and the rule of law should not be overstated. While Mukasey ruled that Padilla was entitled to counsel, he "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." Mukasey's opinion was set to be tested before the Supreme Court until the administration, fearing a defeat, transferred Padilla to a criminal court and tried him there. "If Mukasey is the nominee, he should certainly be questioned aggressively about whether he believes that the President does have this authority [to indefinitely detain Americans without charge] and whether he would intend as Attorney General to defend that authority if it were exercised again." Mukasey will also likely be questioned about an op-ed he penned in the Wall Street Journal last month that essentially agreed with the Bush administration argument that federal courts are not equipped to deal with national security cases. Mukasey urged Congress to consider creating national security courts beyond the military commissions in existence at Guantanamo Bay. While Muksaey's idea for national security courts would provide for some judicial review, it is not a preferable solution. The federal courts have evolved ample means for handling the special challenges posed by national security cases, and the case has not been made as to why those means are inadequate.
POLITICAL HEAT FROM THE RIGHT: Given Mukasey's prior recommendations of support from Schumer and Nan Aron, the head of the liberal judicial activist group Alliance for Justice, the right-wing is sounding concerns that Mukasey isn't the right choice. Some right-wing groups have reportedly "been drafting a strategy to oppose him." "Conservatives might have some serious concerns with Mukasey," said one Republican close to the White House. "He's not well known in the community." The White House was "seeking over the weekend to tamp down concern in the conservative legal world about Mukasey's views." Attempting to head off anger from the right flank, the White House leaked word of Mukasey's nomination to trusted neconservative ally Bill Kristol, who proceeded to advise conservatives to "hold their fire" and "support the president." Mukasey does not hail from Bush's inner circle of Texan friends and allies. Rather, he is a longtime friend of former New York City Mayor Rudy Giuliani (R) and he is currently advising the Giuliani campaign on judicial matters.
SENATE STILL HAS A JOB TO DO: Mukasey appears to be a better pick than the other rumored frontrunner, former Solicitor General Ted Olson, who had raised concerns due to his partisan fidelty to Bush. Senate Majority Leader Harry Reid's (D-NV) insistence that "Ted Olson will not be confirmed" successfully persuaded the White House to choose a nominee who can gain bipartisan support. Now, the Senate must determine whether Mukasey would assert true independence. Center for American Progress legal analyst Mark Agrast writes, "The Senate must consider carefully whether, if confirmed, Judge Mukasey will carry out his duties with the independence and integrity that eluded his predecessor." Schumer said, "For sure we'd want to ascertain his approach on such important and sensitive issues as wiretapping and the appointment of US attorneys, but he's a lot better than some of the other names mentioned and he has the potential to become a consensus nominee." Would Mukasey have said no to warrantless wiretapping? Would he have signed off on torture? Or refused to allow the White House to intercede in the Justice Department's affairs? Mukasey must do more than mouth the need for independence; he must prove it with his answers. Recall, even Alberto Gonzales claimed in his confirmation hearings to "understand the differences" between being Bush's lawyer and being the nation's Attorney General. He didn't. Tell the Senate you demand true independence.