What AG Mukasey Means

Bush nominated(BBC news) retired Judge Michael Mukasey for Attorney General.  Some are suggesting this guy isn’t half bad (Mr Futomaki, dkos):

If this is true, Dems should truly breathe a sigh of relief.  While the man is no liberal, he is a true lawyer’s lawyer and a staunch upholder of justice and the rule of law.  Read about him on Wikipedia here.

Let’s take a look (wikipedia):

Mukasey also heard the trial of Jose Padilla, ruling that the U.S. citizen and alleged terrorist could be held as an enemy combatant, but was entitled to see his lawyers.

Ok.  He let Padilla see his lawyers.  He also allowed a US citizen to be held as an “enemy combatant”.

In a 2003 suit, he issued a preliminary injunction preventing the Motion Picture Association of America from enforcing its ban against the distribution of screener copies of films during awards season, ruling that the ban was likely an unlawful restraint of trade unfair to independent filmmakers.

That’s quite good!  It also looks like NY Democratic Senator Charles Schumer has been recommending this guy for a while.  Mukasey’s political support, on the other hand, is worrying:

Since retiring from the bench, Mukasey has made campaign contributions to Giuliani for president and Joe Lieberman for Senate.

And it gets worse:

In May 2004, while still a member of the judiciary, Judge Mukasey delivered a speech (which he converted into a Wall Street Journal opinion piece) that defended the Patriot Act; the piece also doubted that the FBI engaged in racial profiling of Arabs and criticized the American Library Association for condemning the Patriot Act but not taking a position on librarians imprisoned in Cuba.[11]

Between his staunch support of Giuliani (further details at WSJ Law Blog), and his defense of the Patriot Act, Mukasey might be yet another judge with interesting ideas floating beneath his public record.  I think we can get a very good measure of the man in this piece he wrote on August 22nd, 2007, over at the Wall Street Journal (emphasis mine):

It may be claimed that Padilla’s odyssey is a triumph for due process and the rule of law in wartime. Instead, when it is examined closely, this case shows why current institutions and statutes are not well suited to even the limited task of supplementing what became, after Sept. 11, 2001, principally a military effort to combat Islamic terrorism.

At the other end of the spectrum, if conventional legal rules are adapted to deal with a terrorist threat, whether by relaxed standards for conviction, searches, the admissibility of evidence or otherwise, those adaptations will infect and change the standards in ordinary cases with ordinary defendants in ordinary courts of law.

These proposals deserve careful scrutiny by the public, and particularly by the U.S. Congress. It is Congress that authorized the use of armed force after Sept. 11–and it is Congress that has the constitutional authority to establish additional inferior courts as the need may be, or even to modify the Supreme Court’s appellate jurisdiction.

Perhaps the world’s greatest deliberative body (the Senate) and the people’s house (the House of Representatives) could, while we still have the leisure, turn their considerable talents to deliberating how to fix a strained and mismatched legal system, before another cataclysm calls forth from the people demands for hastier and harsher results.

He is calling for a new set of courts to handle security matters.  Presumably with new rules, too.  His language is polite to a fault, and his reasoning is soft and precise.  Its the kind of argument that lends itself to trust and confidence on the part of the reader.  After all, Mukasey goes to the trouble of calling out the problems with the Padilla case, and suggesting that we are at risk of losing currently enjoyed legal protections.  But that call for a new set of courts is telling.  In conjunction with his support for Giuliani, I don’t think Michael Mukasey is a reasonable conservative we can all agree on.  I think he will be another enabler for an executive branch engaged in a nearly 7 year power grab, and that where others failed Mukasey will be amiable and skillful enough to succeed.

The hearings are a strategic opportunity for the Democrats, as drational (dkos) has insightfully noted.  The hearings are also an opportunity to find out more about the nominee.

Given this administration’s credibility and record, this is not an opportunity we can afford to pass up.

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