How does a liberal get a good read on Judge Michael Mukasey, George W. Bush’s newly nominated Attorney General? Well, I’ll admit that a number of people whose views I respect are impressed. But anyone who’s tight with Rudy G (these days), is pre-approved by Bill Kristol, and comes with The Wall Street Journal editorial page’s stamp of approval, has gotta make me ask, what’s the problem?
The problem with Mukasey is that he’s a consensus candidate. He’s a maybe-moderate conservative picked by the Bush administration with the hope of avoiding a nomination battle in Congress that would remind the country of all the scandals still simmering inside what is officially—although lately inaccurately—called “the Department of Justice.”
Those scandals are a problem in and of themselves since the abuses that caused them—and more we probably don’t even know about yet—aren’t going to solve themselves. But even if the Justice Department wasn’t in this kind of trouble, recall that another consensus candidate with similar credentials for a justice post sailed through his confirmation hearings not long ago and now goes by the name “Chief Justice Roberts.” In retrospect, letting that happen wasn’t such a hot idea after all.
Emily Bazelon at Slate explored liberal regrets about the Roberts nomination when it became apparent that Roberts—who sided with Justice Samuel Alito in 92 percent of non-unanimous Supreme Court cases, Justice Antonin Scalia in 89 percent of non-unanimous cases, and Justice Clarence Thomas in 85 percent of non-unanimous cases—wasn’t quite the moderate his supporters advertised.
Jeffrey Rosen, a law professor and contributing editor at The New Republic, said during Roberts’ nomination that “the claim that Roberts would move the Court to the right as chief justice … [is] transparently unconvincing.” Another time, he said, “[Roberts] might even move the Court to the left.” In response to Bazelon’s article, Rosen wrote that liberals shouldn’t express “self-pity or shock about the unsurprising fact that, now that Alito has replaced O’Connor, the Court has moved right.” I dunno. I read Rosen. I’m surprised.
So what of Mukasey? What do Kristol and The Wall Street Journal editors know that we don’t? And who could get surprised this time around?
Sen. Schumer (D-NY), who touted Mukasey in 2003 as a potential Supreme Court nominee for Bush, could be in for a surprise this time around. Sen. Patrick Leahy (D-VT) also expresses “hope and optimism“ about Mukasey’s nomination. And the liberal Alliance for Justice has offered a tentative, albeit lukewarm, endorsement of Mukasey.
Scott Lemieux at The American Prospect writes, “Given that last time Bush managed to select someone far worse than John Ashcroft, I think it’s pretty clear that Mukasey is as good as we’re going to get.” A lawyer blogging at FireDogLake thinks Mukasey may make for a good AG, but also fears that “a man of Mukasey’s reputation and life experience would find it inconceivable that Bush 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.”
Alas, when it comes to civil liberties, there won’t be much to “punk.” Then again, maybe Mukasey will see it coming—and be a part of it. Mukasey ruled in 2002 that Jose Padilla, a U.S. citizen, could be legally classified an enemy combatant and also be entitled to legal representation. Blogger Glenn Greenwald thinks that was a pretty impressive display of independence early in the war on terror. But his independence in the Jose Padilla case notwithstanding, Mukasey earned the support of The Wall Street Journal’s editorial board with his defense of the Patriot Act.
Perhaps most worrisome of all is that Mukasey, who would enter an administration that has taken paranoid secrecy to extreme levels, may be a fellow traveler. According to an account in The New Republic about Mukasey’s work on 9/11 cases, the judged sealed “all transcripts, dockets, and court orders in the material-witness cases.” Then “last fall Mukasey’s secretary told The Washington Post that Mukasey wanted the cases kept secret ‘forever.’” Further, Josh Gerstein says, “What makes this virtual information blackout particularly galling is that it’s far from clear that the law requires the strict secrecy Mukasey has imposed.” Is this really the man we want in charge of wiretapping procedure and Guantanamo Bay?
The upshot: Mukasey remains an enigma as a potential Attorney General, media frenzy notwithstanding. Matt Yglesias makes the point that:
“A confirmation hearing isn’t just about the nominee, it’s also an opportunity to really force a would-be high official to sit in a chair and give some reasonable answers to questions from the Senate. Once someone has a job, it turns out to be remarkably easy to show up, say a bunch of stuff that’s not really true, and then apologize a couple of days later. Just ask Mike McConnell. … it doesn’t make sense to prejudge these things. Given what’s gone down over the past few years, any appointee to this job deserves to be asked some tough questions about his views on whether torture is illegal, whether U.S. Attorneys should be sacked for failing to mount partisan prosecutions, etc.”
With Democrats controlling the Senate for the first time during a major Bush confirmation hearing, perhaps it’s time to let the Constitution—and the democratic process—do its job by demanding some answers. Yes, the Gonzales Justice Department has plenty of dirty laundry that needs airing. And yes, that lady in front of the department deserves a new set of clean clothes. But let’s try not to make the same mistake twice…
Eric Alterman is a Senior Fellow of the Center for American Progress and a Distinguished Professor of English at Brooklyn College, and a professor of journalism at the CUNY Graduate School of Journalism. His blog, “Altercation,” appears at www.mediamatters.org/altercation, His seventh book, Why We’re Liberals: A Political Handbook for Post-Bush America, will appear early next year.
Research Assistance: Tim Fernholz