The ‘conciliatory’ pick

Based on leaked info, the weekend buzz had it right about the possibility of Dubby going with Michael Mukasey as his AG candidate rather than the more contentious Ted Olsen, who was evidently the White House favorite. This marks a departure in Bush behavior … this guy is a “stranger” to the Dubby, just met in the last couple of days and no “insider” — which does NOT make him Mister Sweetness and Light, however.

He’s conservative to the bone, and anybody who gets a pass from NeoCon William Kristol is NOT our friend; this is the equivalent of sending up a quick-witted and charming Ted Bundy instead of a raving, wild-eyed Charlie Manson. The insult is only a matter of degree’s. Still, he’s more independent than some of the other candidates considered, he’ll have a short window of service and he’s the new guy to vet. Those on the Right will likely give Mukasey a harder time than those on the Left … he’s just not “Sam Alito” enough for them.

On Constitution Day, then … the new Attorney General of the United States? Most likely. MSM first, then political analysis you’ll want to read … a disturbing “deal” that might have prompted this less egregious selection, Mukasey’s Padilla doin’s, how pro-active response on Olsen scratched him off the list. There’s an activist/op in the Progress Report, in case you’d like to warn your Congresspersons off.


Bush picks Mukasey as attorney general

WASHINGTON – President Bush has settled on Michael B. Mukasey, a retired federal judge from New York, to replace Alberto Gonzales as attorney general and will announce his selection Monday, a person familiar with the president’s decision said Sunday evening.

Mukasey, who has handled terrorist cases in the U.S. legal system for more than a decade, would become the nation’s top law enforcement officer if confirmed by the Senate. Mukasey has the support of some key Democrats, and it appeared Bush was trying to avoid a bruising confirmation battle.

The 66-year-old New York native, who is a judicial adviser to GOP presidential hopeful Rudy Giuliani, would take charge of a Justice Department where morale is low following months of investigations into the firings of nine U.S. attorneys and Gonzales’ sworn testimony on the Bush administration’s terrorist surveillance program.

Key lawmakers, Democrats and Republicans alike, had questioned Gonzales’ credibility and competency after he repeatedly testified that he could not recall key events.

The White House refused to comment Sunday. The person familiar with Bush’s decision refused to be identified by name because the nomination had not been officially announced.

Bush supporters say Mukasey, who was chief judge of the high-profile courthouse in Manhattan for six years, has impeccable credentials, is a strong, law-and-order jurist, especially on national security issues, and will restore confidence in the Justice Department.

Bush critics see the Mukasey nomination as evidence of Bush’s weakened political clout as he heads into the final 15 months of his presidency. It’s unclear how Senate Democrats will view Mukasey’s credentials, but early indications are that he will face less opposition than a more hardline, partisan candidate like Ted Olson, who was believed to have been a finalist.

Mukasey has received past endorsements from Democratic Sen. Chuck Schumer, who is from Mukasey’s home state. And in 2005, the liberal Alliance for Justice put Mukasey on a list of four judges who, if chosen for the Supreme Court, would show the president’s commitment to nominating people who could be supported by both Democrats and Republicans.

Last week, some Senate Democrats threatened to block the confirmation of Olson, who represented Bush before the Supreme Court in the contested 2000 election. Democratic senators have theorized that Bush might nominate Mukasey, in part, because he wanted to avoid a bruising confirmation battle.

The possibility that Bush would pick Mukasey, however, angered some supporters on the GOP’s right flank, who have given Mukasey less-than-enthusiastic reviews. Some legal conservatives and Republican activists have expressed reservations about Mukasey’s legal record and past endorsements from liberals, and were drafting a strategy to oppose his confirmation even before it became known that Bush had chosen him.

Mukasey was nominated to the federal bench in 1987 by President Reagan. He was chief judge of the U.S. District Court for the Southern District of New York before he rejoined the New York law firm of Patterson Belknap Webb & Tyler as a partner in September 2006.

He first joined Patterson Belknap in 1976 after serving as assistant U.S. attorney in the criminal division of the Southern District, where he rose to become chief of its official corruption unit. During his 18 years as a judge, Mukasey presided over thousands of cases, including the trial of Sheik Omar Abdel-Rahman, who was accused of plotting to destroy New York City landmarks.

In the 1996 sentencing of co-conspirators in the case, Mukasey accused the sheik of trying to spread death “in a scale unseen in this country since the Civil War.” He then sentenced the blind sheik to life.

The Mukasey nomination could be Bush’s last major Cabinet appointment.

Friday was the last day of Gonzales’ 2-1/2 years at Justice. Solicitor General Paul Clement will serve as acting attorney general until the Senate confirms Gonzales’ replacement. Gonzales’ conflicting public statements about the firings of the U.S. prosecutors led Democrats and Republicans alike to question his honesty. Their charges were compounded by his later sworn testimony about the terrorist surveillance program, which was contradicted by FBI Director Robert S. Mueller and former senior Justice Department officials.

A congressional investigation into the firings recently shifted its focus onto whether the attorney general lied to Congress. The Justice Department also has opened an internal investigation into the matters.

At first, the president backed his embattled attorney general. At an Aug. 9 news conference, Bush said, “Why would I hold somebody accountable who has done nothing wrong?”

A little more than two weeks later, Bush announced that he had “reluctantly” accepted the resignation of Gonzales, who followed John Ashcroft’s four-year stint as Bush’s first attorney general. Bush said Gonzales, his loyal colleague from Texas who was his White House counsel before heading to Justice, had worked tirelessly to keep the nation safe.

Bush said opposition lawmakers treated Gonzales unfairly for political reasons. “It’s sad that we live in a time when a talented and honorable person like Alberto Gonzales is impeded from doing important work because his good name was dragged through the mud,” Bush said. ++

Bush Settles on Mukasey to Replace Gonzales
Appointment of Retired Federal Judge Could Come on Monday
Michael Abramowitz and Dan Eggen, Washington Post
Sunday, September 16, 2007

President Bush has settled on retired federal judge Michael B. Mukasey to replace Alberto Gonzales as Attorney General, two sources familiar with the decision said Sunday.

The appointment of Mukasey, 66, considered a law-and-order conservative and authority on national security issues, could come as early as Monday morning, the sources said.

Former solicitor general Theodore B. Olson had been mentioned as a leading candidate for the job, but his chances may have been damaged after the Senate’s top Democrat vowed last week to block his confirmation.

One source close to the White House said Bush advisers appear to have decided that “they didn’t want a big fight over attorney general” in the Senate, especially when other qualified candidates are also available. The source said Olson, who represented Bush in the Supreme Court fight over the contested 2000 election, would be seen as “very political,” despite his outstanding legal credentials.

Another well-connected GOP source, who also spoke on the condition of anonymity in discussing internal White House deliberations, said that Mukasey — the former chief judge of the U.S. District Court for the Southern District of New York — has a solid reputation and is seen by Bush aides as “confirmable.”

That posture may not sit well with some conservatives in the legal world, who have relished the prospect of a confirmation fight over Olson. But it may signal a White House desire to restore order to the Justice Department, which has experienced considerable turmoil because of controversies surrounding Gonzales, including his handling of the firing of federal prosecutors.

“I think Mike Mukasey would be a first-rate pick. He’s really a tough-as-nails judge. He has very strong law-and-order values,” said Jay P. Lefkowitz, a former White House domestic policy adviser who practices law in New York. “The Justice Department has been really beleaguered over the last few months, and bringing someone in like Mike Mukasey will be a real shot in the arm for the department.”

“Conservatives might have some serious concerns with Mukasey,” said one Republican close to the White House. “He’s not well known in the community.” On the other hand, this Republican noted, it would be a one-year-plus tenure as attorney general, not a lifetime appointment to the Supreme Court, and, therefore, conservatives may decide it is not worth bolting from Bush.

White House officials declined comment Sunday. Press secretary Dana Perino said Saturday night that an announcement “will be made relatively quickly.”

Mukasey, 66, spent 19 years on the federal bench in Manhattan, including his last six years as the district’s chief judge. He was appointed by President Ronald Reagan and retired in 2006, returning to private practice at his old law firm, Patterson Belknap Webb & Tyler.

Both Mukasey and his son, Marc, are connected with Rudolph W. Giuliani’s presidential campaign, as members of the Republican candidate’s justice advisory committee. Michael Mukasey worked as a federal prosecutor alongside Giuliani early in his career.

As a federal judge, Mukasey presided over some of the nation’s most high-profile terrorism trials, including those of Omar Abdel Rahman, the “blind sheik,” and 11 others in connection with the 1993 World Trade Center bombing. Mukasey was the first judge to handle the case of Jose Padilla, after the federal government declared him an “enemy combatant” in 2002 and sought his indefinite detention without legal recourse. After Mukasey rejected the latter motion, the federal government had the case transferred to another court, in South Carolina. (Padilla has since been convicted in Florida in a separate terrorism trial.)

Mukasey would probably enjoy the crucial support of Sen. Charles E. Schumer (D-N.Y.), who has frequently mentioned him as a good choice to replace Gonzales and reiterated that view in conversations with White House counsel Fred F. Fielding. Schumer’s backing, though, could prompt concern among conservatives, along with Mukasey’s inclusion on a 2005 list of possible Supreme Court nominees suggested by a liberal group, the Alliance for Justice.

A Weekly Standard editorial, posted online Saturday night, seemed aimed in part at preempting criticism from the right. In noting that Mukasey is the leading candidate to be the next attorney general, Editor William Kristol, who has deep ties in the conservative world, wrote: “Olson would be a superb AG — and there is a case for nominating Olson, and inviting a Senate confirmation fight over issues of legal philosophy and executive power. There is also a case, though, for nominating an AG equally as first-rate as Olson, but one who’ll be easily confirmed — and who will, I believe, come to judgments similar to Olson’s on key issues of executive power and the war on terror.” ++

Staff writers Robert Barnes and Peter Baker and researcher Magda Jean-Louis contributed to this report.

Ex-Judge Is Said to Be Pick At Justice
Democrats Likely To Accept Him as Attorney General
Michael Abramowitz and Dan Eggen, Washington Post
Monday, September 17, 2007; Front Page

President Bush has selected retired federal judge Michael B. Mukasey as his new attorney general, sources said yesterday, moving to install a law-and-order conservative at the Justice Department while hoping to avoid a confirmation fight with Senate Democrats.

The nomination of Mukasey, considered an authority on national security issues, could come as early as this morning, the sources said. The White House was already seeking over the weekend to tamp down concern in the conservative legal world about Mukasey’s views, assuring allies that he shares Bush’s views on executive power and the need for strong action against terrorists.

In picking Mukasey, Bush would sidestep the uproar that would have erupted in the Senate had he chosen one of the early front-runners, former solicitor general Theodore B. Olson. Some conservatives made clear their puzzlement that Bush was passing over one of their favorites for someone who has been praised by Senate liberals and their allies.

But the White House apparently decided that Mukasey is conservative enough, and that it is important to restore confidence in the Justice Department as quickly as possible, with a choice that could garner bipartisan support. The department has been in turmoil under Alberto R. Gonzales, the Bush confidant whose firing of nine U.S. attorneys and the ensuing controversy led to his resignation last month.

Senate Democrats and their allies signaled yesterday that they were likely to accept Mukasey without a big fight and said they saw the pick as a conciliatory gesture from Bush.

“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,” Sen. Charles E. Schumer ( D-N.Y.), a frequent critic of the Gonzales Justice Department, said in a statement. “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.”

Meanwhile, some conservatives close to the White House seemed prepared to accept the president’s judgment about Mukasey, who also has close ties to Republican presidential candidate Rudolph W. Giuliani, the former New York mayor.

“He has all the objective qualifications to be an excellent attorney general,” said Edward Whelan, the president of the Ethics and Public Policy Center. “He’s not well known, so there would be some question marks in the minds of a lot of folks if he’s nominated. But my strong sense is that the more people learn about him, the more impressed they will be.”

White House press secretary Dana Perino declined to comment yesterday.

Mukasey would be the latest in a string of key Bush appointments that come from outside Texas or the president’s inner circle and seem less ideological than some of his previous appointments.

In 1987, he was nominated by President Ronald Reagan as a U.S. District Court judge in the Southern District of New York. He spent the next 19 years in Manhattan’s federal court, including the last six years as the chief judge. He retired in 2006 to return to the law firm Patterson Belknap Webb & Tyler.

As a federal judge, Mukasey was best known for his expertise on national security issues, in part because he presided over the trials of “blind sheik” Omar Abdel Rahman and others in connection with the 1993 World Trade Center bombing. Mukasey lived under heavy federal security for years because of his connection with that case. He also handled the early case against Jose Padilla, who was declared an “enemy combatant” by Bush in 2002.

Mukasey ruled that the government had the power to make the declaration but found that Padilla should have access to his lawyers.

As a prominent judge in one of the country’s busiest courts, Mukasey was involved in other high-profile cases, including battles between insurance companies and a World Trade Center developer after the Sept. 11, 2001, attacks. He dismissed in 2004 lawsuits against an Italian insurance company for policies held by Holocaust victims.

Baruch Weiss, a partner at the law firm of Arent Fox and a former federal prosecutor in New York who appeared before Mukasey, described him as a very smart, business-like judge who kept things moving quickly in his courtroom and who has a reputation for integrity.

Weiss said Mukasey’s appeal to the White House most likely was his independent stature; he is not, as he put it, “someone who would simply be doing the president’s bidding.”

“He is thoughtful, independent, very much a person of integrity — he’s nobody’s plaything,” said Paul A. Engelmayer, a Democrat and former supervisor in the U.S. attorney’s office in Manhattan. “If there is an analogy here, it’s to [former FBI director] Louis Freeh — who obviously bedeviled Clinton. He will not be a tool of the Bushies.”

Some of Mukasey’s public pronouncements have pleased conservatives. During one 2004 speech, excerpts of which were published by the Wall Street Journal, Mukasey strongly defended the controversial USA Patriot Act antiterrorism law and said its “Orwellian name . . . may very well be the worst thing about the statute.”

He also scoffed at complaints from librarians and others that the statute gave the government too much power to spy on ordinary Americans, arguing that the allegations were not supported by evidence.

Mukasey, who was Manhattan’s chief federal judge at the time, also defended a wave of terrorism-related immigration arrests by the FBI after the Sept. 11 attacks. “We should keep in mind that any investigation conducted by fallible human beings in the aftermath of an attack is bound to be either over-inclusive or under-inclusive,” Mukasey said. “There are consequences both ways. The consequences of over-inclusiveness include condemnations. The consequences of under-inclusiveness include condolences.”

In an op-ed article last month for the Journal, Mukasey said that the Padilla case and others underscore the shortcomings of the regular criminal justice system for terrorism defendants, and he advocated some kind of alternative system for handling such cases. That view is likely to raise eyebrows within the Justice Department, where many career attorneys pride themselves on the department’s ability to try to convict terrorism suspects under traditional criminal procedures.

Andrew C. McCarthy, who led the prosecution of Rahman in front of Mukasey, wrote last week on the National Review Web site that the former judge would “instantly restore the department’s well-deserved reputation for rectitude, scholarship, vision and sober judgment.”

McCarthy, now a conservative commentator, portrayed Mukasey as meticulous and balanced in his handling of the Rahman case — “carefully crafting insightful opinions on the proper balance between national security and civil liberties.”

Some social conservatives have raised questions about Mukasey’s 1994 ruling against Jia-Ging Dong, a Chinese man who sought political asylum in the United States. Dong had argued that he would be persecuted if he was sent back to China, because he had attempted to help his wife avoid a forced abortion under the communist country’s one-child policy.

Immigration courts had ruled against Dong, finding that China’s enforcement of the policy did not constitute persecution allowing asylum under U.S. law. Mukasey agreed and upheld the government’s deportation order.

“Dong has not pointed to any evidence that would suggest that he was persecuted on a statutorily protected ground, much less evidence that ‘compels’ such a conclusion,” Mukasey wrote in his ruling.

The view from Democrats and their allies yesterday seemed to be that Mukasey was about the best they could hope for from Bush. Ralph Neas, president of the liberal advocacy group People for the American Way, predicted Mukasey’s confirmation, assuming he is willing to answer “legitimate questions” from the Senate Judiciary Committee.

“He seems like a bona fide conservative Republican, not a right-wing ideologue,” Neas said. “He seems like someone who would attract strong bipartisan support and who could help restore public confidence in the Department of Justice.” ++

Who Is Michael Mukasey?
Faiz Shakir, Amanda Terkel, Satyam Khanna,Matt Corley, Ali Frick, and Jeremy Richmond, The Progress Report

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. ++

Who Is Michael Mukasey and Should He Be Attorney General?
Among other things, he’s a conservative Republican, playing an active role in Giuliani’s nutty presidential campaign.
Steve Benen, Alternet
September 17, 2007

Chasing Attorney General rumors has proven to be rather pointless. Initially, Department of Homeland Security chief Michael Chertoff was practically already prepping for his confirmation hearings. Then, the White House leaked a short list, sans Chertoff, and Ted Olson was the likely nominee.

Now we have a new front-runner for the job: Michael Mukasey, a former judge on the U.S. District Court for the Southern District of New York, whose name was on the leaked short-list from last week.

The sources said that President Bush is close to announcing his nominee, possibly doing so as early as tomorrow, and that Mukasey has vaulted to the top over other contenders, including former solicitor general Theodore B. Olson, whose chances may have been damaged after the Senate’s top Democrat vowed to block his confirmation.

One source close to the White House, describing Mukasey as the clear “front-runner,” said Bush advisers appear to have decided that “they didn’t want a big fight over attorney general” in the Senate, especially when other qualified candidates are also available. The source said Olson, who represented Bush in the Supreme Court fight over the contested 2000 election, would be seen as “very political,” despite his outstanding legal credentials.

Another well-connected GOP source, who also spoke on the condition of anonymity in discussing internal White House deliberations, said that Mukasey is “the leading candidate.”

He described Mukasey — the former chief judge of the U.S. District Court for the Southern District of New York — as a conservative on counterterrorism issues, such as electronic surveillance, and said that he has a solid reputation and is seen by Bush aides as “confirmable.”

Oddly enough, Mukasey’s principal problem, should he be the nominee, is that he may draw fire from the right, not the left.

For one thing, conservatives wanted Olson, not just because of his record as a conservative ideologue, but also because the right relished a high-profile fight with Senate Democrats over the Attorney General vacancy. Conservatives don’t care about “confirmable”; they care about partisan warfare.

But more importantly, the right doesn’t perceive Mukasey as “one of them.”

“Conservatives might have some serious concerns with Mukasey,” said one Republican close to the White House. “He’s not well known in the community.”

Even worse, the progressive legal community doesn’t seem to hate him too much. Sen. Chuck Schumer (D-N.Y.) has been encouraging White House counsel Fred Fielding for a Mukasey nomination, and the Alliance for Justice, a liberal legal group, suggested in 2005 that Mukasey would be a conservative-but-fair Supreme Court nominee.

These are not exactly the kind of accolades conservatives want to hear.

How serious could the right’s opposition really be? It’s hard to imagine the circumstances that would lead to a full-scale conservative revolt against a Mukasey nomination (a la Miers, Harriet), but there will likely be quite a bit of grumbling. The AP noted that Brian Burch, president of a conservative Catholic-based advocacy group called Fidelis, started getting calls early Saturday from members of his group and other conservative groups who were worried that Bush was getting ready to nominate Mukasey. “His federal judicial record has been at times hostile to the issues that we care and have concern about, like abortion,” Burch said.

My hunch is, should Mukasey get the nod, conservative “concerns” won’t amount to much. Indeed, it’s hard to imagine the circumstances that would lead to a full-scale revolt against a Mukasey nomination (a la Miers, Harriet). Senate Republicans are likely to give Bush what he wants; Bill Kristol has endorsed him in a piece overnight (under a headline that read, “Michael Mukasey to be Attorney General… And conservatives should be happy”); and Bush only has a year left in office anyway, making Mukasey a short-timer from the outset.

I don’t want to mischaracterize Mukasey as some kind of reasonable moderate that Dems should embrace. He’s a conservative Republican, playing an active role in Rudy Giuliani’s nutty presidential campaign.

But at first blush, he does appear to be one of the better nominees we can hope for out of this White House. Stay tuned. ++

How Bush’s AG Pick Irritates the Right
Monday, Sep. 17, 2007

WASHINGTON – If the administration was trying to avoid a fight with the left over the confirmation of Alberto Gonzales’ replacement as Attorney General, they may have succeeded with the nomination of former New York district judge, Michael Mukasey. The question now is whether they’ll have a fight with the right. Both in Mukasey himself, and in the process by which he picked him, Bush has gone against the right, spurning their favored choice, engaging with — and conceding to — Democrats, and naming a New Yorker who is an unknown quantity on many of the social issues about which they care most deeply.

Through weeks of quiet deliberation, Bush abandoned the confrontational pronouncements to which Congress has grown accustomed. Instead, White House counsel Fred Fielding reached out to Democrats, including Bush’s constant opponent Senator Charles Schumer of New York, who had previously recommended Mukasey as a Supreme Court nominee.

Schumer and Fielding went so far as to discuss names, and Mukasey’s came up. “We’re in an alternate universe,” says one Senate aide, “Charles Schumer saying something nice about a guy used to be the kiss of death.”

The administration also adopted the Clinton-like process of trial ballooning: leaking names through allies to see how much of a storm would ensue. For the better part of last week, the name of conservative darling and respected lawyer, former U.S. Solicitor General Ted Olson, was on everyone’s lips in Washington. But strong pushback from Democrats, including Senate Majority leader Harry Reid, who said he’d torpedo an Olson nomination, apparently sank his chances. “Olson would’ve been a bloodbath,” says the Senate aide.

But in dropping Olson and going with Mukasey, Bush has opened himself up to attack from the right. Conservatives are worried about Mukasey’s 1994 denial of asylum for a Chinese man who said his wife had been forced to have an abortion under that country’s one-child law, which they say indicates he’s weak on pro-life issues. And though he has consistently ruled with the administration on a number of important and high-profile terrorism cases, Mukasey broke with them in an early, crucial ruling, saying that American citizen Jose Padilla had a right to a lawyer, no matter what his status in the war on terror. Mukasey is also very close to former New York Mayor Rudy Giuliani, whom social conservatives distrust.

Both ends of Pennsylvania Ave. were waiting to see the reaction of leading conservatives to the nomination Monday. The neo-conservative columnist William Kristol wrote a favorable op-ed online Saturday, but a right-wing Catholic group, Fidelis, voiced serious concerns citing his ruling in the Chinese asylum case and his appeal to the left. Senate Republicans were cautiously optimistic, but still worried. “Conservatives will respond well to Mukasey if conservative leaders point in that direction,” one Senate Republican aide said Sunday. But he worried that any uncertainty among conservatives could be deadly. “Hesitation kills,” he said, “It will be perceived as weakness.”

There is much at stake in the nomination. Democrats are still insistent on getting to the bottom of the U.S. attorney scandal that engulfed the justice department all this year, and the question of how Mukasey will pursue that will come up in the confirmation hearings. Further down the road, a number of key questions will occupy the next Attorney General, including the rights of prisoners at Guantanamo Bay and elsewhere as well as the use of no-warrant domestic eavesdropping.

Mukasey is not guaranteed a free pass from the left: his rulings in favor of the government have upheld some of the toughest provisions of Bush’s approach to fighting terrorism. However, Senate Democrats are largely positive so far on Mukasey, saying that as a judge he was very knowledgeable and an unquestioned straight-shooter. They also say he is independent, which is the highest priority of those who want to get to the bottom of any possible wrongdoing at the justice department under Alberto Gonzales. ++

Conservatives wary of Bush’s AG pick
Nick Juliano, Raw Story
Monday September 17, 2007

In selecting a former federal judge who has broken with the administration in the past as his nominee to replace Attorney General Alberto Gonzales, President Bush seems to be trying to avoid a bruising confirmation hearing with a Democratic Senate, although his choice has rankled some conservatives.

Bush announced Monday morning that he was nominating Michael Mukasey as his next pick for attorney general. Gonzales’s last day on the job was Friday.

Senate Majority Leader Harry Reid issued tempered praise of Mukasey immediately after the announcement, although he cautioned the Senate should not “rush to judgement.”

“I’m glad President Bush listened to Congress and put aside his plan to replace Alberto Gonzales with another partisan Administration insider. Judge Mukasey has strong professional credentials and a reputation for independence,” Reid (D-NV) said in a prepared statement. “A man who spent 18 years on the federal bench surely understands the importance of checks and balances and knows how to say no to the President when he oversteps the Constitution.”

Mukasey ruled against the White House in the case of Jose Padilla, an American citizen who Bush declared an enemy combatant, in declaring that Padilla needed to be allowed to consult with a lawyer.

A former Justice Department official, Mukasey said the department faces “vastly different” challenges than it did when he was an assistant US attorney 35 years ago.

In accepting the nomination at the White House, Mukasey invoked the “solemn anniversary” of the Sept. 11, 2001, terrorist attacks as a reminder of the new national security environment the United States finds itself in.

“Thirty-five years ago, our foreign adversaries saw widespread devastation as a deterrent. Today, our fanatical enemies see it as a divine fulfillment,” Mukasey said. “But the task of helping to protect our security, which the Justice Department shares with the rest of the government, is not the only task before us. The Justice Department must also protect … the rights and liberties that define us as a nation.”

Mukasey has been praised prominent Democratic Sen. Charles Schumer of New York, who previously put forward Mukasey’s name as a possibility to be nominated as a Supreme Court justice.

“The next Attorney General needs to be someone who can begin the process of restoring the Department of Justice to its proper mission,” Sen. Patrick Leahy, chairman of the Judiciary Committee, said in a news release. “I am hopeful that once we obtain the information we need and we have had the opportunity to consider the nomination, we will be able to make progress in this regard.”

Although Mukasey seems likely to be confirmed by the Senate, his nomination has rankled some right-wing groups who are wary that he is not a stalwart conservative.

“His federal judicial record has been at times hostile to the issues that we care and have concern about, like abortion,” Brian Burch, president of the Catholic-based advocacy group Fidelis told the Associated Press. ++

A Consensus AG Nominee?
by looseheadprop, FireDogLake

I’ve got bad news for you. The Senate is signaling to the White House that it can buy its way out of a US Attorney’s firing investigation by simply nominating a competent AG. Paul Kane at WaPo has some skinny:

    This is the $64,000 question of the moment. Very interestingly, Chuck Schumer and Dianne Feinstein told myself and Jonathan Weisman in separate interviews Monday that if Bush picks a consensus AG, that the spirit and drive of the Dem investigations into the US attorney firings would likely dissipate. Chuck Schumer said that! This guy’s made his political living off of this scandal. not only that, Schumer signaled to me that he likes Paul Clement, the solicitor general who will be acting AG. Clement is a former Judiciary Committee senior aide, who worked for John Ashcroft on the panel when he was a senator.

DiFi floated a couple of other names, according to the Orange County Register:

    California Sen. Dianne Feinstein had some names for the White House today, just hours after Attorney General Alberto Gonzales announced his resignation: former Missouri Sen. John Danforth and former Deputy Attorney General James Comey.

So, it seems once again, our intrepid Senators who have been dealt a poker hand of unusual strength are going to freakin’ cave in to Buscho in exchange for crumbs. Crumbs!

Beyond the names already mentioned in the quotes above, I know someone else that Senator Schumer likes. In fact Schumer likes him so much, that he put him on the Senator’s short list for SCOTUS nominees. Since this individual was until very recently the Chief Judge in SDNY, and since unlike some of the scarier names being bandied about like Chertoff, Silberman, or Cox, he is not a household name; and since, unlike some of the truly qualified by training, experience, personal integrity and past performance possibilities like PatFitz and Jim Comey, he has not been endlessly discussed here, I thought I would introduce you to Judge Michael Mukasey.

Former Chief Judge Mukasey was an AUSA in the Southern District of New York where he worked in the public corruption unit with a much younger Rudy Guiliani for a trial partner. Judge Mukasey was appointed to the bench in 1988 by Ronald Reagan.

I remember when he was first appointed and a colleague of mine was going to try one of the first few criminal case he presided over. None of the younger AUSA’s knew what kind of judge he would be, so each evening when she came back to the office after court, we would grill her about her day.

He was tough, but in a good way. You had to be prepared and he required the utmost professionalism from lawyers appearing in his courtroom. Unlike some judges, he did not automatically assume that AUSA’s “spoke with the voices of angels” to use a term often thrown about by unhappy defense lawyers.You really had to earn your conviction (and defense lawyers their acquittals) in his courtroom.

His reputation is that of a man who follows the law, even if he does not agree with it. The other day, he wrote an OpEd in the WSJ complaining that criminal procedure law is an inadequate tool for combating terrorism. While I don’t agree with his conclusion (I think it makes more sense to surgically amend the criminal procedure law) the problems he raises are both real and thought provoking. I will come back to this OpEd in a minute.

He also ruled against Big Tobacco in a suit brought by shareholders of Phillip Morris relating to the company’s fraudulent concealment of nicotine’s addictive qualities.

He presided over one of THE most important anti terrorism cases held to date, the trial of “the blind sheik” Omar Abdel Rachman and El Sayyid Nosair and 8 other defendants for plotting to blow up the UN, bridges, tunnels and other landmarks around NYC.

He is also the judge that produced the split ruling in the Jose Padilla case; saying that Padilla could be held in a military brig as an enemy combatant (a decision that has since been reversed by an appellate court) and holding that Padilla was entitled to a lawyer.

One of Padilla’s lawyers, Donna Newman was quoted in the New York Sun as saying “I admire him [Mukasey] greatly.” She described herself as a “another weeping fan” apparently as an expression of regret that he was retiring from the bench.

Jude Mukasey stepped down from his position as chief judge in July when he reached the maximum “active” judge age of 65. Once federal judges reach that age they must take “senior status” with a reduced workload, or they can retire.

Judge Mukasey announced that he would retire and then rejoin his old law firm in September. However, while on his summer hiatus between jobs, the judge for no apparent reason decided to pen an OpEd about the law, Presidential power and terrorism cases.
How odd.

Please do click through to the WSJ OpEd and see if you get the same vibe I did. Could it be that Jude Mukasey was signalling the WH that he wanted the job and would not be in a hurry to undo the changes that have been made in how DOJ handles terror cases? Could he have been trying to reassure the President that he is tough on terror even though he felt the need to follow the law with respect to right to counsel?

I gotta tell you. I do not see a Mukasey confirmation hearing being a bloodbath, even without Schumer’s support. However with Schumer, Judge Mukasey can probably whistle through SJC. I think the guy is very confirmable.

So, here’s the problem. The Senate is about to give away its oversight powers and the Senators who should be opposing this will be totally on board, convinced they have done good thing by getting a competent guy into DOJ. [emphasis added - j]

However, they don’t need to bargain away anything to accomplish that. Elliot Richardson was reputed to be a competent guy and the Senate got a Special Prosecutor AND the specifics of the charter appointing him in exchange for confirming a competent guy.

Further, I fear that a man of Mukasey’s reputation and life experience would find it inconceivable that Bushco would hide information from him to manipulate him into going along with something nefarious or that they would try to use him as an unwitting “beard” for their next assault on the Constitution. Which is how they will be able to punk him, just like they did Ashcroft. He won’t see it coming.

I may change my mind tomorrow, but today I just bet my law partner a nickel that Mukasey is the AG nominee. ++

Will Bush’s new AG nominee respect our Constitutional rights?
Mary Shaw, Smirking Chimp
Sep 17 2007

According to a report by the Associated Press, George W. Bush is going to announce today (on Constitution Day, coincidentally) that he has selected Michael B. Mukasey, a retired federal judge from New York, to replace Alberto Gonzales as Attorney General.

So I decided to do a little digging into Mukasey’s background. First I learned that Senator Chuck Schumer (D-NY) had recommended Mukasey as a possible nominee for the Supreme Court, as well as for the AG gig. So maybe he’s not so bad.

I also learned that Mukasey had heard the trial of Jose Padilla. He ruled that Padilla could be held as an enemy combatant (not so good), but that Padilla was entitled to see his lawyers (good).

Then I read an op-ed that Mukasey had written in the Wall Street Journal about the Padilla case. While dressed in all kinds of legalese, the piece made me uncomfortable. It seems that Mukasey was advocating for secret evidence and other restrictions on a defendant’s Constitutional rights and civil liberties. Will he be another enabler of the Bush administration’s policy in which national “security” trumps the rule of law?

Read the op-ed and decide for yourself: Jose Padilla Makes Bad Law

And remember the words of Benjamin Franklin:

    “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”


The Benefits Of Showing A Little Spine
Christy Hardin Smith, FireDogLake
Mon Sep 17, 2007

What happens when you show a little spine up front? Via the WaPo:

    …Theodore B. Olson, the former solicitor general, was said to be a White House favorite for the post. But talk of his possible nomination provoked a preemptive strike from Senate Majority Leader Harry M. Reid (D-Nev.), who threatened that Senate Democrats would block the nomination.

That may have doomed Olson’s prospects to replace Gonzales, according to several conservatives who talked to Washington Post reporters Michael Abramowitz and Dan Eggen over the weekend. One insider said that in spite of his outstanding legal credentials, Olson, who represented Bush in the Supreme Court fight over the contested 2000 election, would be seen by senators voting on his confirmation as “very political.”…

This was the appropriate response, swiftly rolled out, firmly communicated, and designed to take advantage of the weakened posture of the Bush WH on legal and ethical matters. Thanks to Karl Rove’s master plan for the political shop’s domination being exposed for all the world to see in the overreach on the USAtty firings, the Bushies are in no position to dictate bad choices for the DOJ.

Good on the Democratic leadership for taking this step.

As David Neiwert pointed out earlier, the tendency toward gaining applause from the Beltway punditocracy for making concessions is a crap strategy. Democrats win when they show some spine where it is called for — in this case, to block Olson who was wrong, wrong, wrong, wrong, wrong for rebuilding a DOJ that has been systematically infiltrated and skewed from the inside out by partisan Republican hackery. Decisions at the DOJ ought to be made according to the facts, the evidence and the law — not based on how to maneuver a case for electoral advantage. Period.

When called out publicly by the Democratic leadership – and not in the usual genteel “behind-the-scenes so as not to cause a fuss” way — the Bush Administration folded like a deck chair under a bloated elephant. ++

“So keep fightin’ for freedom and justice, beloveds, but don’t you forget to have fun doin’ it. Lord, let your laughter ring forth. Be outrageous, ridicule the fraidy-cats, rejoice in all the oddities that freedom can produce. And when you get through kickin’ ass and celebratin’ the sheer joy of a good fight, be sure to tell those who come after how much fun it was.”
~ Molly Ivins, 1944 – 2007

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