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Judging Mukasey


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Disappointment was the first reaction of many conservatives to the president’s nomination of former federal judge Michael B. Mukasey to be the next attorney general.

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This was not a reflection on Mukasey, who appears to be a fine candidate. Rather, many conservatives were frustrated that Democrats, after months of posturing about the “politicization” of the Justice Department, had managed to derail the potential nomination of Theodore Olson, the superbly well-qualified former solicitor general.

There was much to be said for the idea of forcing a fight over someone of Olson’s caliber, and even making use of a recess appointment if the Left obstructed. Nevertheless, after the troubled stewardship of Alberto Gonzales, the Justice Department needed a steady hand as soon as possible, and the administration believed that Mukasey would be unlikely to provoke a drawn-out confirmation battle.

Mukasey was a solid federal prosecutor in New York City. After spending years in a very successful private practice, he was tapped by President Reagan to sit on the U.S. District Court for the Southern District of New York in Manhattan — one of the nation’s most consequential tribunals. He served with distinction, presiding over thousands of cases, including the historic sedition prosecution of Sheikh Omar Abdel Rahman and eleven others for waging a war of urban terrorism against the United States — the beginning of the war we are still fighting today. Rising to chief judge of the court, Mukasey set a determined example in the days after the 9/11 attacks. He kept his court open despite its proximity to Ground Zero, and ensured that the court’s processes were available in ongoing investigations. Later, he handled the controversial enemy-combatant case of José Padilla, sustaining the president’s wartime authority to hold an American citizen as an enemy combatant but ensuring that Padilla’s constitutional rights of habeas corpus and counsel were protected.

Mukasey has spoken forcefully on the need to reauthorize critical Patriot Act security provisions. And since leaving the bench last year to return to private practice, he has warned of the severe challenges militant Islam presents to our justice system, which promotes generous discovery of government intelligence and frowns on lengthy pretrial detention.

Complimentary statements about Mukasey from Sen. Charles Schumer and other prominent liberals have aroused some conservative suspicions. Schumer has described Mukasey as a conservative lawyer committed to the rule of law. Of course, that is also true of Ted Olson, whom Schumer strove to disqualify. Once President Bush settled on his choice, Schumer quickly reconsidered his view of Mukasey, saying that the nominee’s views on national-security issues would have to be examined and allowing only the “potential” that Mukasey could be a consensus choice.

Questions have also arisen over some of Mukasey’s rulings in areas other than national security — for example, his denial of asylum to Chinese émigrés who had fled forced abortions. It will be important to study the judge’s record. It will be equally important to bear in mind that a conservative jurist is one who shows restraint — it being no more proper for the judiciary to impose a conservative policy than to impose a liberal one. Mukasey’s 1994 decision in a case called Dong v. Slattery appears to indicate appropriate deference to the asylum policies of the U.S., not an endorsement of China’s noxious one-child policy.

But the confirmation will still be an ordeal, with the nominee at the mercy of Democratic senators intent on politicizing good-faith legal disagreements with the Bush administration. Lacking direct experience in the ways of Washington, Mukasey may well find the hearings a valuable political tutorial. His record indicates sound views on national-security issues such as FISA reform; now he will see firsthand the agenda that threatens important antiterrorism tools. He should win the support of impartial observers, and deserves a speedy confirmation.



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