Mukasey is the Right Attorney General—Seven Years Too Late

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.

Put simply, while Mukasey’s nomination is a home run, it’s a home run late in the game, with nobody on base, and a lot of runs down. Even assuming his confirmation goes off without a hitch, he will arrive in time to serve just over a year in a highly-partisan climate and with virtually no Senate-confirmed leadership below him in an already-demoralized department. Mukasey will find himself squeezed between a White House that demands unflinching loyalty and Democrats on Capitol Hill unwilling given recent history and a looming election to give the administration one iota of political space. He has many more opportunities for failure than for success.

It is, therefore, essential for Mukasey to take office with a sober definition of success. As attorney general, he will have neither time nor capital to do more than a few big things. So he needs to choose them carefully. He needs to recognize that he will be, in all likelihood, a caretaker attorney general whose job is to avoid handing off any disasters to his successor. With that modest goal, Mukasey should adopt two overriding priorities, one institutional, the other substantive.

The institutional priority has to be restoring the credibility of the department and its relationship with Congress. To do this, Mukasey will need to limit White House-Justice Department contacts to a small number of key personnel, reducing the capacity for improper political interference in the department’s work. And he will have to expand congressional-departmental contacts–specifically by making himself available to explain his judgments and to assure senators as to their merits. While there is very little he can do to tamp down ongoing spats over investigative matters, many of which involve the White House, each of these battles takes on higher salience and ferocity in an atmosphere of congressional distrust of the attorney general. Mukasey needs to make clear from the outset that under him, the department will not tolerate the sort of political shenanigans it has seen over the past few years–and he needs to both establish and to maintain the faith of Democrats on that point.

The substantive priority is to make sure that the next administration, not just this one, has the counterterrorism tools that it will need. There is a real danger now that, with the Bush administration so lacking in prestige and credibility, it will prove unable to maintain even those authorities that should not depend on irresponsible or expansive claims of executive power.

One threat comes from the Supreme Court, which this term will hear, once again, oral arguments over detentions at Guantánamo Bay. As I have argued before, the administration is poised to lose this case, and it may do considerable damage in the process to the ability of the executive branch to detain the enemy. Virtually nobody contends that the current detention policy is the optimal one. Both Secretary of State Condoleezza Rice and Secretary of Defense Robert Gates, in fact, favor closing Guantánamo altogether. Only an absurd policy paralysis has left the administration waiting patiently for the next rebuke from the justices before trying a new approach. The new attorney general would make a significant contribution if he could work with Congress to break this logjam and put American detention policy on a stronger basis–preferably before the Supreme Court rules.

Mukasey is also uniquely positioned to help shepherd a reasonable debate over the future of the Foreign Intelligence Surveillance Act, as the temporary fix to the wiretapping law that the administration won from Congress this summer heads toward expiration over the next few months. Part of the problem with the acrimonious earlier round of legislative maneuvering was that Gonzales had so little credibility on the Hill that when he described the needs of the intelligence community, many people did not believe him. Mukasey needs to figure out a way to preserve the surveillance authorities the NSA requires while at the same time building in accountability measures that will maintain public confidence in the work of the spooks.

The Bush administration has made little secret over the years of its desire to leave its successor a stronger executive branch than it inherited when it came into office. That will not happen. The realistic question is how much weaker the executive branch will be. Mukasey’s goal should be to turn over a department that is neither in tumult nor facing a crisis over the executive powers to watch and detain people who would fight against America. That this task falls on a man who has so little time to accomplish it is Bush’s disgrace, not Mukasey’s. It would be a triumphant year for Mukasey’s short-lived attorney generalship, however, if he could relieve the next president to some degree of the burdens of Bush’s disgrace.