President George Bush is reportedly close to announcing for the Attorney General’s post a choice that isn’t the one polarizing one staunch Republican activists sought but one that Democrats may be able to live with .
The name being floated (most likely tested) as the reported choice: Michael Mukasey, a former federal judge who is also an expert in national security matters.
The former reported front runner: former solicitor general Ted Olson, a respected but supremely controversial conservative lawyer who was in on efforts during the Clinton administration to go after President Bill Clinton, played a key role in getting Florida’s disputed votes for Bush in 2000 when he successfully argued the case before the Supreme Court and was a key defender of the administration’s early controversial policies battling terrorism.
Olson had polarized (and nearly vaporized) the political landscape before he even was nominated.
Republican activists and GOP politicos argued that partisanship did not disqualify anyone. Some argued Olson was being “smeared.” Even though Olson was as symbolic a controversial Republican partisan as could be found on the political landscape, former New York Rudy Giuliani declared his longtime friend Olson “good for all Americans.” National Review’s Kate O’Beirne, as reliable a barometer as any about policies and political figures conservatives love who will be not so loved by independents and many Democrats, wrote about how happy conservatives were to hear that Olson was the likely candidate.
But the stage seemed set for a brutal political bloodletting that would have wound up with an administration with very little political capital left among independent and Democratic voters having virtually picked a fight it a) likely could not win b) could be the final straw for many non-Republican voters.
That was clear from the Democratic reaction: Democrats vowed to block him. Senate Majority Leader Harry Reid flatly said Olson would not be confirmed. Joe Conason, writing in Salon, articulated the view of many non-Bush supporters (including according to some news reports some dismayed Republicans):
Should George W. Bush want to prove yet again that he is more pugnacious than presidential, then his choice for a new attorney general could not be more obvious. He will go ahead and nominate the man whose name the White House has floated for the past several weeks, and he will relish the inevitable bloody conflict when Theodore B. Olson, the legal éminence grise of right-wing Washington, seeks confirmation in the U.S. Senate.
Bush likely believes that there is nobody more qualified for the highest law enforcement office in the land than Ted Olson — and if the standard of conduct is the departing attorney general, Alberto “Fredo” Gonzales, then he could be right.
But now it appears as if Bush is pulling away from a partisan precipice.
All of the newspaper pieces, op-ed columns, editorials and blog posts that had been pre-written and in the can about Bush throwing down yet one more gauntlet — Olson’s nomination as a virtual declaration of war to the very end for Democrats — will have to be tossed. (If Bush announces Olson tomorrow, then they’ll have to be RETRIEVED).
The issue as Republican conservatives framed it was, there was nothing wrong with partisanship and the President could nominate whomever he wanted.
But a larger issue in this has been whether a democracy (especially in a time of terrorist threats) is best served when polices and appointments are made not just not taking into consideration consensus and national unity but seemingly to intentionally trigger angry, furious power-play partisan battles that divide the country.
In this apparent decision, Bush seems to have pulled away from a growing suggestion that he views his government as a government of the base, by the base and for the base.
He now reportedly seems poised to name a nominee that will be questioned vigorously but is not the equivalent of rubbing Democrats’ faces in it.
News reports on Mukasey suggest he may be to the Attorney General’s post what Robert Gates has proven to be for the Secretary of Defense’s office: someone with whom Democrats may disagree but who has their respect. The Washington Post:
Michael B. Mukasey, a former federal judge regarded as an expert on national security issues, has emerged as the leading candidate to replace Alberto R. Gonzales as attorney general, several conservatives close to the White House said yesterday.
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.
But remember: it is NOT firm yet. Still:
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.
This is a highly significant statement. On some other appointments Bush has opted for recess appointments, sticking to choices that Democrats vehemently opposed.
The key question when Bush has fought these battles and implied that it is Mr. X or no one ELSE for that post until he’d fill it with a recess appointment has been: isn’t the GOP a big enough party so that there are LOTS of OTHER talented and competent people who fill the post without sparking a bitter battle with Democrats?
Up till now, some appointments have evolved into power struggles rather than attempts to fill posts with skilled people. MORE:
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.”
But the Post also notes that some conservatives may not be happy this. They have WANTED a bloody fight:
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.
Mukasey has an impressive background and links to former New York Mayor Rudy Giuliani.
The 66 year old spent 19 years in Manhattan on the federal bench. He was an appointee of Republican icon President Ronald Reagan. He retired in 2006, returning to private practice. He and his son are connected with Giuliani’s campaign and are members of Giuliani’s justice advisory committee. And Michael Mukasey worked as a federal prosecutor under Giuliani early in his career.
Weekly Standard Editor Bill Kristol (whose role essentially has now boiled down to being the unofficial promoter, advance spinner, political trial balloon launcher and in some case instigator of Bush administration policies and arguments) is already getting word (and polite orders) out to the GOP troops that they should support Mukasey — even though (GOD FORBID!) New York Senator Charles Schumer has supported him. (If a Democrat and Schumer in particular likes him too that means to some that it’s not a good choice since the idea of consensus as practical, wise and sound politics is fading in early 21st century America).
Some of my fellow conservatives will be disappointed that the nominee won’t be former Solicitor General Ted Olson. 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.
While it’s unfortunate that the first thing many conservatives will hear about Mukasey is that his
home-state senator Chuck Schumer has praised him, that shouldn’t disqualify him. Knowing Mukasey wasn’t on Bush’s Supreme Court short list, Schumer felt free to list him a few years ago as an acceptable “consensus” candidate for the Court. And in fact, I for one don’t know enough about Mukasey’s constitutional views to be sure I’d recommend him for a lifetime Court appointment. Nor would he perhaps be the best pick for AG at the beginning of a term, with hundreds of court appointments and other personnel and policy decisions in a wide range of areas ahead. But this is an appointment for the last fifteen months of an administration whose basic policies are set and which has few judges left to appoint.
In other words, it look as if the political “fix” is in.
UPDATE:
Mukasey served as chief judge of the Southern District of New York before rejoining Patterson Belknap Webb & Tyler as a partner in 2006.
In August, Mukasey wrote a commentary for The Wall Street Journal that was critical of the Jose Padilla prosecution. Mukasey handled the case when it was still in federal court in Manhattan. The piece highlights what he describes as “the inadequacy of the current approach to terrorism prosecutions.â€
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 “confirmableâ€; they care about partisan warfare.
But more importantly, the right doesn’t perceive Mukasey as “one of them.â€
…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.
—Talk Left has a detailed, plus and minus (from a progressive point of view) analysis that must be read IN FULL. Here is one paragraph:
Preliminary assessment: He’s independent-minded, extremely experienced and smart, and while more conservative on terror-related issues than I’d like, far too supportive of the Patriot Act and too close to Rudy Giuliani for comfort, he doesn’t run rough-shod over defendants’ rights. As compared to Ted Olson, Mukasey is an improvement.
While an argument can be made for having an argument, an equal and better argument can be made for quietly working for a candidate who will not inspire immediate partisanship. For one thing, Justice is a mess, and a smooth transition will make its recovery more quick. Also, having these partisan fights for the sake of having them does damage to political discourse and in the end achieves little more than increased rancor — especially if other candidates will push for the same policies and objectives. That’s more a knock on Congress and the Democrats, whose knee-jerk opposition to Olson is both substanceless and insulting. In the present climate, and with the administration rightly focusing its political strength on keeping the mission going on Iraq, it makes more sense to give a little on this appointment as a balance.
If the White House thinks Mukasey will represent its policies and goals at Justice as well or better than anyone else, we should be supportive of the nomination and hold Democrats to their word on his confirmation. It puts Schumer and his colleagues on the spot and almost guarantees a low-key confirmation hearing. If they renege on their promise of bipartisanship after nominating what they have described as a “consensus candidate”, it will demonstrate much more clearly where toxic partisanship originates.
—Political scientist Steven Taylor:
It would be a refreshing change of pace for the administration to try and avoid, to some degree at least, direct confrontation when it isn’t necessary. There is no reason why the President can’t find and appoint someone non-controversial for this slot. More to the point, the political stars are aligned in a way that essentially dictates that he do so. We can start with the following basic ingredients: a outgoing AG who demonstrated (at best) substantial incompetence in the job and a President with rather low approval ratings. Then let’s throw in the constitutional environment, which is no small issue: the opposition controls the Senate, which has the constitutional authority to reject the nominees that the President sends over. If they want to make it difficult, they have every institutional right to do so. Further, the political environment in which that power rests has been considerably strained by the recalcitrance of the administration in cooperating over issues concerning the DoJ, and therefore it is hardly surprising that the Democrats in the Senate are hardly in a cooperative mood.
……(And yes, I am fully aware that the Democrats’ actions are often fueled partisan political goals as well, but then again the political climate aids them in that area).
—Looseheadprop has some INSIDE INFO on the judge and her post at Firedoglake needs to be read in full. It’s positive. A tiny taste (edited down by TMV here):
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….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 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.
Joe Gandelman is a former fulltime journalist who freelanced in India, Spain, Bangladesh and Cypress writing for publications such as the Christian Science Monitor and Newsweek. He also did radio reports from Madrid for NPR’s All Things Considered. He has worked on two U.S. newspapers and quit the news biz in 1990 to go into entertainment. He also has written for The Week and several online publications, did a column for Cagle Cartoons Syndicate and has appeared on CNN.