The recount announcement from the Bush administration that former Federal judge Michael Mukasey will be their nominee for Attorney General has been met with relief from many in the progressive movement, as well as with praise from the mainstream media, which views Mukasey as a "consensus choice."
However, the fact that Mukasey is, unlike many past Bush nominations, a "consensus choice," does not mean that he’s perfect, or even ideal. As of right now, there are plenty of warning signs about Mukasey that should make Senate Democrats, and movement progressives, willing to at least ask questions about his suitability to be Attorney General.
Following rumors that President Bush might nominate former Solicitor General Theodore Olson, more than a few progressives began worrying about who the next occupant of the Attorney General’s office might be. After numerous scandals, and the apparent politicization of the Justice Department, it’s clear that the next Attorney General needs to be someone capable of healing the wounds and divisions in Justice, and rebuilding a demoralized department. A Bush loyalist, and a movement conservative, such as Olson, would not have been the ideal choice for carrying out such a task.
As such, the subsequent announcement from Senate Majority Leader Harry Reid that an Olson nomination would be held up in the Senate was both understandable, and advisable. It is from that threat that the Mukasey nomination likely has its origins. President Bush, unwilling to spend his diminished political capital on a drawn out fight with Senate Democrats, opted to choose a Republican who, while being a "conservative," is neither a Bush loyalist, nor a "movement" conservative. Indeed, during the 2005 fight over filling vacancies on the Supreme Court, Mukasey emerged as a proposed candidate on the part of Senate Democrats, such as Chuck Schumer, who stated that they viewed him as "acceptable" for the highest court in the land.
It is clear that, with Mukasey as the nominee, we are much better off than we could have been with other potential nominees. However, even with Mukasey, information is emerging that should give Senate Democrats pause – and make them willing to ask probing questions, and give serious consideration to whether or not the former federal judge is the "right" person to serve as Attorney General at this time.
As residents of New York, Michael Mukasey and Rudy Giuliani have a long, and entwined history. The two "started out" together, serving with each other as lawyers in the private sector, and later as federal prosecutors, working on many of the same cases. This professional relationship created a personal connection between the two, and after Giuliani was elected Mayor of New York City, he asked Mukasey, by then a federal judge, to conduct his swearing in ceremony. According to an article in The New York Times, Mukasey, a few days after the 1994 inauguration, wrote the following in a letter to Giuliani and his wife:
"Your achievements have been such that neither I nor anyone else I know could match them.
"Please also know that my admiration and love, and Susan’s, for both of you and your family is without limit."
Not surprisingly, this personal connection has translated into support for Giuliani’s 2008 presidential campaign. According to the Times article, before Mukasey’s selection for the Attorney General position, he and his family were responsible for donating $10,000 to Giuliani’s campaign. Furthermore, Judge Mukasey, and his son, were both selected for positions on the Giuliani campaign’s Judicial Advisory Committee.
It should be abundantly clear that no nominee for Attorney General, ever, is going to be without pre-existing political conflicts. However, especially in light of the 2000 elections, it should also be clear that any presidential election in the United States can run the risk of being subject to claims of voter intimidation, election fraud, or other wrong doing on a grand scale. Though presidential primaries have not had quite as turbulent a history of late, it is, at least theoretically, not impossible for them to fall victim to some of the same claims.
If there are problems with the 2008 election, the United States Attorney General could end up in a position to decide whether or not federal intervention or investigation is warranted. For that reason, nominating someone who is not only a close friend, but also a major contributor and campaign advisor to a current candidate for the Presidency, can, and should, be viewed as suspect. The wrong person in the wrong office at the wrong time can have a major impact on the basic fairness of how U.S. elections are conducted. While it may very well be possible that Mukasey could adequately exercise his role as Attorney General in such a situation, it is also possible that his pre-existing relationship with Giuliani - and his role on the Giuliani presidential campaign - could cloud his views. These are questions, and scenarios, that Senate Democrats must be willing to consider.
Even more disturbing than Mukasey’s pre-existing relationship with Giuliani, however, is the former Judge’s views on the balance of civil liberties verses law enforcement.
While President Bush may not have picked a "movement" conservative in choosing Mukasey, it seems that he did want someone who’s going to back his views on subjects such as the Patriot Act, and warrantless wiretapping. Indeed, according to The New York Times, Mukasey wrote a Wall Street Journal article defending the Patriot Act, in which he said that the government is entitled to "receive from its citizens the benefit of the doubt" when it comes to law enforcement.
This is a fundamentally frightening view for a chief law enforcement officer in a democracy. In a democracy, a government should always have to justify its laws, and its actions, to its citizens. It should not automatically be accorded "the benefit of the doubt."
Political appointees who feel that government is entitled to the "benefit of the doubt" have led the Bush administration not only to pushing the Patriot Act through congress, but also to enacting, without congressional approval, a warrantless wiretapping program that was in violation of federal law. Though the administration now claims that no warrantless wiretapping has been conducted since at least February, we have no way, given the executive branch’s love for secrecy, to know whether or not this is really the case. Nor do we know, given their advocacy of the idea that FISA is too "quaint" to be followed, whether they may again abandon that law’s requirements at a later date. This may especially be a risk if Congress refuses to give the administration everything they ask for when recent FISA changes are re-considered in a few months.
And, therein lies the problem. As the chief law enforcement officer of the land, it’s going to be the responsibility of Michael Mukasey, if he becomes Attorney General, to act as a first line of defense against the administration violating the law, and our Constitution. However, as a "law and order" conservative, will Mukasey, like many other "law and order" conservatives, paradoxically view it as the prerogative of the executive branch to break the law, if they deem it necessary?
Perhaps he won't. But, on the other hand, perhaps he will. Given that we’re talking about a man who has gone on the record as stating that the government deserves the "benefit of the doubt" when doing anything related to fighting terrorism, I am, to say the least, concerned about how he would react when presented with an administration that decides to push for the law to be ignored, and the basic civil liberties of Americans to be violated.
The fact that Mukasey is being nominated for Attorney General while serving as an advisor on an active presidential campaign raises, questions. But, on its own, it is very unlikely that this connection should be enough to warrant blocking the nomination, assuming Senate Democrats check into things adequately.
Mukasey’s positions on civil liberties, on the other hand, are much more troubling. They are even more so when one considers the fact that, given his close relationship with Giuliani, it is possible that Mukasey may serve as Attorney General for years beyond the end of the Bush administration, if Giuliani wins the 2008 elections.
The Attorney General, as the chief law enforcement officer of the land, should be someone who is going to insist that the administration enforce both the protections of the constitution, and the laws that are currently on the books, such as FISA. Having the wrong person as Attorney General, someone who is unwilling to enforce the law, and someone who is willing to throw away the Constitution, puts the country at risk now, and for future generations.
Mukasey may be "better" than other possible potential candidates for Attorney General, but he is not perfect. Senate Democrats should not be willing to give Mukasey a pass without first asking the appropriate questions, and doing the appropriate investigations, into both his pre-existing relationship with Giuliani, and into what, exactly, giving government the "benefit of the doubt" would mean for illegal programs such as warrantless wiretapping.