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.
White House officials seem to be testing the name of former U.S. District Court Judge Michael Mukasey for Attorney General. CNN and the AP are reporting he is now the leading candidate.
Sen. Charles Schumer, who is pushing Mukasey for Attorney General, touted him to Bush for the Supreme Court in 2003.
Mukasey is a decades-long pal of Rudy Giuliani and, like Ted Olson, now serves as a judiciary advisor to Rudy's campaign. Judge Mukasey swore in Rudy Giuliani as Mayor of New York -- twice in two days. One ceremony took place New Year's Eve at Mukasey's apartment.
Mukasey's son, Marc, also a former federal prosecutor, is a partner in Bracewell-Giuliani.
Judge Mukasey presided over the 1993 WTC bombing trial of Sheikh Omar Abdel Rahman and his co-defendants.
He's a firm supporter of the Patriot Act, writing a Wall St. Journal Op-Ed in 2004 that urged, "Before attacking the Patriot Act, try reading it." In it, he mocks the librarians who challenged Section 215, the provision allowing for seizure of library records and he argues in favor of sneak and peek search warrants and notes the legality of roving wiretaps.
When Jose Padilla was initially arrested on a material witness warrant, he presided over those proceedings. He ruled that President Bush had the authority to declare Padilla an enemy combatant but the court had the authority to review the evidence supporting the designation. The Second Circuit later overruled part of his ruling:
After Jose Padilla's conviction, he wrote this op-ed in the Wall St. Journal on terror trials, suggesting Congress ought to get its act together and consider creating some other kind of tribunal for trying terrorists.