Mukasey
A lot of you have asked what I think of the Mukasey nomination. I’m in the middle of day job stuff at the moment, so let me point you to what Glenn and looseheadprop have to say on Mukasey (which is really more valuable than what I could say anyway, since they’re the ones with JD after their name–LHPJD; it’s like a secret code! Also see litigatormom’s comment–she’s got the JD built right into her name!).
For what it’s worth, Mukasey seems like someone who believes in the rule of law, but is not someone who will go to great lengths to fix existing problems. He’s also not someone with the bureaucratic experience to whip DOJ back into shape. So in some sense, Mukasey would prevent any further damage, but would not make great progress on reversing the damage Alberto Gonzales did.
As to what the nomination means, I’ve got more questions than answers:
- Did Democrats in the Senate make a deal–to drop the Congressional investigation into DOJ matters in exchange for a relatively non-controversial nominee? Of special note, Mukasey is basically Schumer’s pick for the nomination, and Schumer’s the one you’d have to buy off to make such a deal.
- If so, are the Democrats expected to be able to ask for some kind of guarantee on the integrity of the investigations conducted by DOJ, such as those being conducted by the Inspector General, or perhaps even a Special Counsel investigation of the issues?
- Would such discussions effectively give Mukasey a Harriet Miers problem, where the wingnuts in the Republican party campaign to get a real hack appointed (the underlying risk here, btw, is that Orrin Hatch is a likely fallback candidate in such a scenario, and the Senate has a nasty habit of supporting its own against their better judgment).
One indicator of some answers to that question comes in Reid’s statement (by email):
I’m glad President Bush listened to Congress and put asidehis plan to replace Alberto Gonzales with another partisan Administrationinsider. Judge Mukasey has strong professional credentials and areputation for independence. A man who spent 18 years on the federalbench surely understands the importance of checks and balances and knows how tosay no to the President when he oversteps the Constitution.
But there should be no rush to judgment. The SenateJudiciary Committee must carefully examine Judge Mukasey’s views on thecomplex legal challenges facing the nation. I look forward to meetingJudge Mukasey, and I will work with Chairman Leahy to ensure a full airing ofthe issues presented by his nomination.
Shorter Harry: We know the bench is as concerned about the shredding of the Constitution as Congress is. However, we reserve the right to ask for more, in approving this nominee, than just someone who believes in the rule of law.
In other words, I think Reid, at least, will attempt to get more out of this approval process than just Mukasey. It’s key to have Reid’s leadership on this, because Schumer’s undoubted support in SJC almost guarantees this nomination will easily make it to the Senate floor.
Let’s see whether Reid manages to deliver on his words.
Scott Horton’s take on this is also valuable:
http://harpers.org/archive/2007/09/hbc-90001230
Hmm. I don’t know. There’s no way in hell Bush/Fielding would allow anyone but a Gonzalez 2 in that position. They asked him his thoughts on executive privilege, and they are sufficient to protect the president.
chisolm
Don’t underestimate the shrewdness of Chuck Schumer. He was pretty important in Comey’s role at DOJ, certainly orchestrated Comey’s testimony before SJC, and keeps a pretty close eye on the judicial issues in NY.
I may not always like Schumer’s methods–but he’s not stupid. So I suspect this is a not-stupid nomination.
Well, I am certainly not as plussed by what I have seen of Mukasey as are LHP and Schumer (in fairness, they are in New York and have seen him up close; I have not). I will say this, I am not nearly as enthralled with his Padilla decision as others. Yes, he did take a courageous stand on one issue regarding counsel (and, quite frankly, the wood could have been layed down a lot harder on the counsel issue); there were, however, many more in which he did not. All that aside, I agree with litigatormom that he is as good as we will get put up by Bush. I consider it critical to get him locked down and exposed on a whole host of issues in the confirmation hearings and to insist, as Leahy has indicated, on production of all the witheld material. It is not like they nominated Chemerinsky here; there is no reason to cave on anything in order to wind up with Mukasey, he isn’t that super-duper.
EW.
If Dems did make a deal to get Mukasey, it would be a colossal error. You insightfully pointed out how foolish an Olson nomination would be, and any other loyalist would have been in the same boat. Dems own SJC and HJC and would be foolish to cede that tool for any nominee in light of the Admins weakness now.
Dems have vacated defense of Iraq and FISA; investigations are the only existing power they seem willing to wield. It’s all they have left with traction and base appeal.
My guess is Mukasey is a puffball nominee to get us all complacent and make sure no strings are attached to his nomination. Greenwald and even Mary are on board with the â€better than Clement†tack.
We seem to all be defused by a reasonable candidate, and this IMHO, is exactly what Bush expects and needs.
Another guess: There is no way the right will stand up against Mukasey unless some investigation strings get attached. This is a stealth nominee.
mukasey will only have a year and a fraction to work. maybe he will be able to get a little renovation done at doj.
the thing i personally care most about
is whether or not he will release the documents that the senate and house committees (leahy, conyers, waxman) have demanded, but which doj has withheld to date.
i suspect the damage to rove and gonzales from relating these would be enormous, e.g., rove’s (and dojâ€s) role in the seliegman persecution.
it’s unlike the bush admin to want to make a clean breast of things.
so,
will mukasey continue to stonewall on some documents?
will senate democrats question him closely on whether he will give up all records?
has there been a behind the scenes records deal made already between congress and the white house?
E:
Well, back at ya: Don’t underestimate the shrewdness of Fred Fielding. His priority is to protect the p and the vp, and they listen to him. Fielding is not going to vett someone who doesn’t have that same goal (absolutely no oversight) as his/her priority. They HAVE to have a party man or woman in that position, period. I really can’t see them dropping the ball on this one.
oh yes.
and then there is the question of whether this might be an appointment made entirely out of considerations of political strategy?
– give the dems mukasey as a target, then the next guy in line gets thru easily?
– let the dems be obnoxious over mukasey and use that to justify a recess appointment for a fixer?
There’s no way a president can be forced to appoint an AG who will in effect, aggressively and vigorously prosecute â€its†own administration.
Whether he agrees with it wholeheartedly or not, where administration wrongdoing is on the line, Mukasey will generally plead the administration’s line on past conduct (surveillance, replacement of US Attorneys), leaving resolution of those issues to courts, to enforce subpoenas or decide cases. He may soften the rhetoric somewhat (or actually use coherent rhetoric), but I just don’t see a way to back down on the bottom line or undo an already-charted political course by changing the head of the DOJ.
The best thing that might come out of this short-term change is leadership is a decent system/process for handling current and future detainees — that is, the ones outside of the usual Article III criminal court system. I suggest a focus THERE has more potential benefit in the long run than trying to prove wrongdoing on the part of the administration as to replacement of US Attorneys and acquisition of international communications to which a US person is a party.
Unless the Democrats intend to act on proof of politically-motivated replacement of US Attorneys, pushing attention there is mostly a political activity of its own right.
And on the surveillance matter going forward, the NSA/CIA in conjunction with Congress are more direct players than is the AG. Surveillance looking backward is in the Courts. See above, where administration â€wrongdoing†is on the line.
Orion – I suspect that Olson was the diversion play to insure that Mukasey gets through; not Mukasey for someone else. The Administration is convinced they can live with and/or work around Mukasey for the short time left; and they are undoubtedly correct in that regard. The critical point is for the Dems to not cave in on, nor relinquish, anything in the process and to use the process to gain that which they haven’t been able to obtain out of the recalcitrant Administration. Tall order for our weasels.
What happened to Leahy’s promise to hold any future Bush nominee for AG in committee until all information about the US attorney purge, requested by the Senate Judicial Committee, has been delivered?
Is Leahy’s promise still good or has a deal been made for Mulkasey?
Lederman says Peter Keisler now in as Acting AG, knows him, likes him (him, not his positions).
The argument that Mukasey is needed immediately to begin rebuilding DOJ doesn’t wash, imo. He’s only there for a short time, true rebuilding isn’t likely until the next administration, providing it’s an administration that respects law (and in particular habeas). If Keisler is known and liked within DOJ, they might well be better off simply going with Keisler, and leave the political appointee out altogether.
bmaz –
maybe so,
but i was of the impression that the olson balloon took off from outside the white house grounds.
anyway, as this point it’s all speculation for fun. in a few more days we will learn a lot more about what is really going on.
friar will’s
comment sent me to harpers and horton.
conclusion:
it is hard for me to believe that anyone in this white house would want a principled person as AG even a principled, statist, national security judge like mukasey.
in any event,
all i care about are the documents.
therein is the history, the chronology, the facts, and the rationales for actions and policies undertaken during the reign of rove and gonzales at doj.
those we need to lessen the chances of some future effort to fuse together the doj and the the whitehouse political arm.
Orion – And therein lies the rub. They don’t want this guy Mukasey; but they have figured out how to use him as a shiny object and still accomplish what they want. It is all part of the shell game.
Schumer and Leahy appear to be playing good cop, bad cop on this. Leahy controls the timetable and any preconditions for hearings. (Though Bush is trying to force his hand with the appointment of Keisler as Acting AG.)
The worry with Mukasey is that he’s not an administrator, and thus would be open to helpful hints from his new WH liaison or Rove-esque CoS. Which is why it’s vital to get some kind of progress on Congressional investigations before he’s confirmed.