Michael Mukasey Next Attorney General – Who Is He?

President Bush’s nomination of former New York federal judge Michael Mukasey for Attorney General has drawn initial positive responses from Republicans and Democrats, indicating a potentially smooth confirmation process in the US Congress.

Appointed to the federal bench by the late President Ronald Reagan in 1988, Judge Mukasey is a stalwart conservative who sits to the far right of the political spectrum. Yet he is by no means considered a partisan loyalist – but rather a “judge’s judge” and a “lawyer’s lawyer” – having demonstrated a fiercely independent streak and a tough-minded commitment to the law throughout his 18 year tenure, most notably in the area of national security.

Judge Mukasey first presided over the trials of terror suspects in the mid-1990’s, including the cases of conspirators who plotted to blow up New York City landmarks. In October 1995, he sentenced Omar Abdel Rahman, the “blind sheikh”, to life in prison for seditious conspiracy. Then following the 9/11 terrorist attacks, he and other New York judges processed some of the first material witnesses detained by federal authorities.

Yet Judge Mukasey is most celebrated for standing up to the Bush administration in the case of Jose Padilla, a US citizen who stood accused of planning to detonate a “dirty bomb” in the US in December 2002. Although he agreed that the president could issue a decree to designate an American “enemy combatant” and detain him indefinitely without laying any charges, Judge Mukasey infuriated administration officials by ruling that Mr Padilla was entitled to legal counsel and had the right to review and contest the evidence used against him.

The Bush administration resisted the order and sent deputy solicitor general Paul Clement on what was later described as a “suicide mission” – to persuade the judge to reverse his ruling, which the administration said it had interpreted as an “invitation to dialogue”. At the hearing, Judge Mukasey bluntly told Mr Clement that he had no intention of reversing his ruling and that the administration’s arguments were “absurd”. He demanded to know whether the Justice Department intended to continue appealing the decision in order to defy his ruling, before instructing a chastised Mr Clement to “Take your seat”.

Judge Mukasey then handed down a sternly-worded ruling that left no room for misinterpretation: “Lest any confusion remain, this is not a suggestion or a request that Padilla be permitted to consult with counsel, and it is certainly not an invitation to conduct a further ‘dialogue’ about whether he will be permitted to do so. It is a ruling – a determination – that he will be permitted to do so.”

This earned the dauntless judge an instant and enduring respect in both conservative and liberal circles, especially given the Bush administration’s claims at the time that anyone who challenged the president’s powers would have blood on their hands in the event of another terrorist attack on US soil. It also created security concerns for Judge Mukasey, who at one point was guarded round-the-clock by US marshals.

Although some conservatives regard his nomination with trepidation because “he’s not well known in the community”, his relatively brief tenure as Attorney General (if confirmed) makes it less likely that they will strongly oppose him. Others are concerned that he lacks experience leading an expansive and unwieldy bureaucracy like the Department of Justice.

Meanwhile, liberals want to know more about the judge’s approach to issues such as warrantless wiretapping, indefinite detention of suspects without charge and the creation of national security courts to handle terrorism-related cases.

Senator Chuck Schumer (D-N.Y.) 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.”

Glenn Greenwald, a tenacious civil rights advocate and author of How Would a Patriot Act?, believes the issue of indefinite detention without charge is worth revisiting at the confirmation hearings: “He should certainly be questioned aggressively about whether he believes that the President does have the authority [to indefinitely detain Americans without charge] and whether he would intend as Attorney General to defend that authority if it were exercised again.”

Judge Mukasey is also likely to be questioned about an op-ed piece he wrote last month in the Wall Street Journal which advocates the creation of national security courts on the premise that federal courts are not equipped to deal with national security cases. While this would provide some judicial review currently lacking in the Guantanamo Bay military commissions, legal experts have said that no convincing case has yet been made that the federal courts are actually inadequate.

Nevertheless, news of the Mukasey nomination has overwhelmingly been welcomed.

Senate Majority leader Harry Reid (D-Nev.) said, “Judge Mukasey has strong professional credentials and a reputation for independence. 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.”

Former assistant US attorney Michael Sommer said that Judge Mukasey always remained above partisan considerations in his judgements. “He is extremely bright and hard-working,” said Mr Sommer. “Politics was not an issue in his courtroom.”

Senator Schumer, who led the drive to force Alberto Gonzales out of the top job at the Justice Department, has also 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.”

Judge Mukasey was born in 1941 in the Bronx, New York City. He attended Columbia University and Yale Law School before working as an assistant US attorney and head of the official corruption unit in New York. In 1988, he was appointed by President Reagan as Judge of the US District Court for the Southern District of New York, where he served until 2006, including six years as chief judge.

He is a long-time friend of Republican presidential candidate Rudi Giuliani, whom he has advised on justice and national security matters.

Sources:  The Washington Post, Salon.com, The Christian Science Monitor, Newsweek, The Economist

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