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POLITICS-US: Bush Opts for “Confirmable” Attorney-General

Ali Gharib

WASHINGTON, Sep 18 2007 (IPS) - The nomination Monday by President George W. Bush of retired federal judge Michael B. Mukasey for the top spot at the U.S. Justice Department is a departure from business as usual for the administration.

President George W. Bush stands with Judge Michael Mukasey after announcing his nomination Monday, Sep. 17, 2007 Credit: White House photo by Chris Greenberg

President George W. Bush stands with Judge Michael Mukasey after announcing his nomination Monday, Sep. 17, 2007 Credit: White House photo by Chris Greenberg

Judge Mukasey is widely regarded as a consistent conservative, but unlike his predecessor, disgraced former Attorney-General Alberto Gonzales, Mukasey is simultaneously seen as a judge with a reputation for being independent, separating his views on politics and the law. This is a deviation from the administration practice of what critics have deemed “cronyism” – the propensity for nominating people from within the president’s inner circle – and the nomination is being widely hailed as a compromise.

Scott Horton, a Columbia Law School lecturer and self-proclaimed civil libertarian and human rights advocate, espouses this view in his blog on the Harper’s Magazine website, where he wrote that there is “no shortage of things to dislike about” Judge Mukasey, but he should be praised and confirmed because of his “judicious personality”, or his ability to listen carefully and form sound legal judgments.

A poignant example of the nominee’s independence is his ruling on the Jose Padilla case, which questioned the U.S. citizen’s status as an “enemy combatant”. While ruling in favour of the administration’s ability to hold Padilla indefinitely as an “enemy combatant”, Mukasey concurrently defied the administration by ruling that Padilla must be allowed access to his attorney.

Rulings like the one in the Padilla case demonstrate the willingness of the administration to go outside of its inner circle – a group of Bush’s associates and friends from the past who are usually in lockstep with the president, and oftentimes criticised for being under-qualified. But Mukasey’s independence in matters of law will be a welcome change for Democrats who voted against Gonzales in his confirmation hearing because of a perceived inability to put the rule of law ahead of his loyalty to the president.

Indeed, the man widely perceived as the administration’s top choice for the job this time around, former solicitor general Theodore B. Olson, who represented then president-elect Bush in the contentious Supreme Court case Bush v. Gore, was viewed with some suspicion by people who saw him as a too closely associated with the president.

The vow by Democratic Senate majority leader, Harry Reid, to block Olson’s nomination at all costs may have steered the president towards picking a nominee who is indisputably outside his closest circles – Bush and Mukasey only met for the first time at the outset of this month – paving the way for a smooth confirmation.

At the helm of the search was White House chief of staff Joshua B. Bolten and counsel Fred F. Fielding. Bolten’s heavy involvement in the process may be a source of the conciliatory attitude that yielded a nominee with “confirmability”, as Bolten is himself regarded as a Washington insider rather than a Bush insider.

Democratic Senator Chuck Schumer’s backing of the nomination is often cited as evidence of the conciliatory nature of the nomination, but Schumer’s response since the nomination raises additional questions about the administration’s choice. Schumer and Reid contend that they will stall the nomination hearing in order extract more documents and testimony out of the White House with regards to domestic wiretapping and the U.S. attorney resignation scandal.

The Judiciary Committee chairman, Democratic Senator Patrick Leahy, hinted that he might take Schumer and Reid’s line of using the nomination as “as another chance to clear the decks of some important unfinished business.”

Ranking member of the Judiciary Committee, Republican Senator Arlen Specter, spoke out bluntly against this tack, with a view similar to Horton’s blog, that the disarray at the Justice Department is too great and morale too low to let the currently decapitated institution wander aimlessly, and that confirming someone – anyone – qualified for the top spot is paramount to sorting out the department’s issues, stressing that the president had deliberately selected a non-controversial nominee.

The jockeying over the procedure of the nomination is an interesting twist when viewed through the lens of the upcoming presidential election. In light of Specter’s comments, one may view the change in the administration’s demeanor as a means to get beyond some of the scandals that have bogged down the administration and save face for itself as well as, by association, the Republican Party.

It is noteworthy that Mukasey is a long-time ally of the Republican front-runner for the presidential nomination, former New York City mayor Rudy Giuliani. The two have known each other since Mukasey, in 1985, came to U.S. Attorney Giuliani’s defence for questionable practices in the former mayor’s dogged pursuit of organised crime.

The political overtones of the nomination were also widely visible in the press releases put out by two of the leading Democratic candidates for president, Senator Barack Obama and former Senator John Edwards. Both took the opportunity to comment on Mukasey while simultaneously excoriating the Justice Department under Gonzales.

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