Monday, September 17, 2007

Michael B. Mukasey as AG Appointee: Are all the wrong questions being raised?

By Frank J. Ranelli

Former federal judge, Michael B. Mukasey, is President Bush’s decisive choice to head the Justice Department following Alberto Gonzales’ resignation and departure. While ideological conjecture churns around his nomination, many may be already asking the wrong questions and ignoring the obvious specter that it simply may not matter who is Gonzales’ successor.

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As speculated by Salon.com columnist, Glenn Greenwald, and now confirmed by the Associated Press late Sunday evening, Michael B. Mukasey will be Bush’s official nominee to replace the embroiled and now resigned Alberto Gonzales as Attorney General for the United States. While persuasively not a member of President Bush’s tight, inner circle of confidents and cronies, he is ideological an unyielding conservative. He is also a staunch supporter of Republican presidential nominee, Rudolph Giuliani, serving on his presidential advisory board.

Mr. Mukasey is a former practicing attorney for the New York law firm of, Patterson Belknap Webb & Tyler, and an Assistant United States Attorney in the federal prosecutor's office in New York City, where he litigated along side Rudolph Giuliani. Later, in 1987, Ronald Reagan appointed him to serve as a federal judge in Manhattan, where he served for 18 years. Finally, he was Chief Judge of the Southern District of New York from 2000 to 2006, retiring officially on September 9, 2006, where upon he then returned to private practice.


Judge Mukasey is scarcely a household name, yet has played an important, if not contentious and often-enigmatic role, in Bush’s execution of his claimed war on terror. Mukasey presided over the initial trial phase of Jose Padilla in 2003, ruling that as a U.S. citizen and alleged terrorist, Padilla could be held as an “enemy combatant”, but was entitled to see his lawyers.

Although Mukasey ruled Padilla should be granted access to an attorney, he also curiously opined that the President had the right, under Article II of the Constitution, to hold Padilla indefinitely without charges of a crime being levied against him. Mukasey’s decision, that Padilla could be held in perpetuity without charges, was later reversed on appeal. Reluctantly, the Bush administration did ultimately indict Padilla with a crime and transferred him to a civilian court to be tried, where he was later found guilty of conspiracy charges.


The former Chief Judge Mukasey’s dubious and inscrutable logic aside in Padilla’s case; he is seen by many insiders as an independent, fair-minded guardian of the rule of law. Some believe he will refrain from being another political sycophant to Bush and will check his conservative credentials at the Justice Department’s door if confirmed. He has even been endorsed by Democratic Sen. Chuck Schumer of New York. Yet, he has apparently also received the backing of neoconservative and war hawk, Bill Kristol, editor of, the Weekly Standard, an ardent holdout for Bush’s failing and unpopular policy in Iraq.

In addition, obscuring a clear assessment of Judge Mukasey is the fact many liberals believe he is “too cozy with the Patriot Act”, yet several conservatives are lining up to voice opposition to his appointment, in favor of the far more partisan Ted Olson.


Glenn Greenwald’s op-ed piece, Michael Mukasey's role in the Jose Padilla case, does an outstanding job of laying out the tempest of nuanced inconsistencies that have already begun to swirl around Mukasey’s record of judicial rulings. However, Mr. Mukasey’s perceived irreverence or deference to the Bush administration may not be the focal point of suspicion that needs to be raised.


Whether Mukasey is too political right or not enough, too indecisive or contradictory, or simply a “man who follows the law” and, “doesn't run rough-shod over defendants' rights”, may prove a moot point if confirmed. A litany of superb questions to ask Mukasey are already being formulated, but they may ultimately prove more semantics than seminal.

We only need to look to former Secretary of State, Colin Powell, and current Secretary of Defense, Robert Gates, to conclude Mukasey’s eventual fate. If Mukasey proves to be a genuine steward of the law, rather than an apparatus for the Bush administration to exploit, he may quickly learn the meaning of “serves at the pleasure of the President” and “wanting to spend more time with his family.” On the other hand, like Gates, if Mukasey disapproves of Bush’s odious politics and policies in confidence, but lacks the courage to voice his concerns publicly, he will be merely marginalized and brushed aside.


In the final analysis, justice may never be served so long as we have a President who believes the rule of law does not apply to him. A President who believes he is above the law or chooses to distort the law to fit his own agenda. In Bush’s mind, judicial fairness, impartiality and integrity are obstructions to a personal grand design, instead of the bedrock of dignified principles a nation should always stand behind and never willingly compromise.

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