Mukasey is the Right Attorney General—Seven Years Too Late

The New Republic, September 18, 2007

There is one big problem with President Bush’s nomination of retired Federal District Judge Michael Mukasey to be Attorney General of the United States: It comes seven years too late.

Mukasey has been an excellent judge–independent, tough, and fair-minded. His handling of the case of Jose Padilla, when the government was holding the now-convicted al Qaeda operative as an enemy combatant, I wrote in 2005, was “a model of the combination of deference and skepticism that judges need to show in the war on terrorism.” The Second Circuit Court of Appeals showed similar admiration for his handling of the trial of Omar Abdul Rahman and his codefendants some years earlier, writing that he had “presided with extraordinary skill and patience, assuring fairness to the prosecution and to each defendant, and helpfulness to the jury. His was an outstanding achievement in the face of challenges far beyond those normally endured by a trial judge.” Mukasey is the kind of man every president should seek in an attorney general: Philosophically compatible with the president in some broad sense yet with a stature above party and with respect beyond it.

Unfortunately, it took Bush three tries to get a Mukasey. And while in baseball, a .333 batting average is stellar, in politics, it’s pretty dreadful.

History will be far kinder to John Ashcroft, who acted with great honor when it mattered most, than was contemporary opinion of the man. But the ideologically-polarizing ex-senator is not a good model for an attorney general–and the choice hurt Bush. The president picked Ashcroft for the narrow purpose of pleasing his Republican base. So when September 11 struck, the attorney general had no ability to speak to people beyond that base. He was exactly the wrong man to go before Congress and the public and tell them what new powers the executive branch needed, and he was the wrong man to assure people that those powers were being used reasonably.

Alberto Gonzales had a far deeper problem: He lacked the baseline independence from the president to do his job effectively. He never had much credibility, and what he had he squandered quickly and completely. Between the two men, seven-eighths of Bush’s administration has slipped by without someone of Mukasey’s stature as attorney general. It’s hard to overstate the magnitude of that loss.

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