(Topical enough for the afternoon? Hello, Fall.
Sorry I’m late with this, crew…
(FP’ed at 12:50 pm, PDT, September 17, 2007) – promoted by exmearden)
First, I’ll confess a minor bias in favor of federal judges. I’ve clerked for federal judges, and I’ve had personal interactions with quite a few of them. By no means are they all perfect, but compared to the politicians from the other two branches of government, I think they deserve a much higher degree of regard.
That said, I think liberals could do much, much worse than Michael Mukasey as AG. He’s not an idiot like Gonzo, and he’s not a partisan hack like Ted Olson or Lawrence Silberman.
First, and most importantly, Mukasey is not stupid. This guy spent 19 years as a federal judge in the Southern District of New York, and was chief judge for the last six. SDNY is one of the most critical districts in the country, and any district judge sitting in that district for 19 years handles a wide variety of complex and high-profile cases. Mukasey handled several high-profile, complicated trials quite well, and that is no small feat, regardless of political persuasions.
Second, I think he is likely to exercise a much greater degree of independence than most likely Bush nominees. Independence comes with the territory of being a solid federal judge. Despite what conservatives say, most federal judges do actually feel bound by established law, and do their best to follow it when the guidance is clear. (Of course, when the established law is unclear, then things can get messy).
I took a look at some of Mukasey’s opinions, and found some examples to back up this assessment. For one small example, check out United States v. Lindauer, 448 F.Supp.2d 558 (S.D.N.Y. 2006), one of his last opinions. In a criminal prosecution for acting as an unregistered agent of Iraq, the government moved to forcibly medicate the defendant to render her competent to stand trial. From the court’s standpoint, it was largely a judgment call, and any judge predisposed to act favorably towards the government easily could have granted the motion. But Mukasey denied it.
It wasn’t a ground-breaking opinion, but this sort of ruling suggests to me that Mukasey was capable of acting independently — as a federal judge anyway. That’s no guarantee he’ll stand up to Bush when the time comes, because Attorneys General aren’t members of the judiciary, but I think he’s noticeably better than any of the other names being floated.
Is he still conservative? Sure. But Bush isn’t about to appoint Ramsey Clark any time soon. And until you win the Presidency, you’re more-or-less forced to take what you can get. The Justice Department is in shambles right now, and the country can’t afford to reject every nominee Bush makes.
Update:
Here’s Greenwald’s take, which is a little more in-depth:
And Merritt:
Both of them are pretty accurate, I think.
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about Judge Mukasey, I must conclude that he is as good a nominee as we might expect from Bush, and is, in fact far better than most potential candidates.
This, from the NYT of 9/16/07, represents my conclusion:
We must restore credibility and independence to the AG’s office. Unless confirmation hearings prove otherwise Judge Mukasey appears to be qualified to take on the restoration project.
This does give me pause however (from Greenwald):
Yet even with this troubling ruling marring Mukasey’s record, what we need more than anything in the AG’s office right now is a legal professional with a deep respect and appreciation for the proper role of each branch in our Federal system as well as a commitment to restoring the honor and integrity of an office besmirched by the political hack who was his predecessor.
Under these circumstances, a former Federal Judge would seem the best choice to take over in a caretaker role caretaker at Justice for these, the end days of Bush’s disastrous reign.
Why would a Federal judge in a job for life leave that to be Bush’s AG for 18 months?
That makes no sense. Someone help me understand that.
Author
By Scott Horton, who knows a helluva lot more about this than I do:
Confirm Mukasey
Important point: