Conservative anxiety about the anticipated nomination of Judge Michael B. Mukasey to be Attorney General derives in part from the fact that Senator Charles Schumer and the Alliance for Justice’s Nan Aron appear to be so high on him. What do they know about him that others don’t? My inquiry has led me to believe that the answer is … nothing.
First, let’s review the facts. In 2003, Senator Schumer sent President Bush a letter in which he identified five Republicans—Senator Specter and four federal judges—whom Schumer thought could win unanimous support as Supreme Court nominees (though Schumer stopped short of promising his own support). Mukasey was one of the four judges. In 2005, Nan Aron listed the same four judges as “consensus nominees.” More recently, both Schumer and Aron expressed their preference for Mukasey over other AG candidates.
Someone who is close to Mukasey and whom I also know and trust assures me that Mukasey and Schumer have had limited contact over the years and that Schumer wouldn’t have any special insights into Mukasey’s understanding of the law. If this is the case (as I believe it to be), why, then, would Schumer put Mukasey on his 2003 list of Supreme Court candidates? The answer, I believe, is that Schumer’s 2003 list was a cynical effort to enhance his own standing to oppose whomever the President nominated to the Court. In other words, Schumer was promoting as Supreme Court candidates five individuals who he knew had no serious prospect of ever being nominated so that he could later paint himself as having been reasonable. And Aron simply cribbed his list.
Schumer’s and Aron’s current preference for Mukasey over other leading candidates is also easy to explain. Schumer and Aron don’t have as much trust that the other candidates will separate law from politics. Although I believe that they are wrong, their judgment is not surprising in light of the fact that some of the other candidates have been more engaged with the world of politics while Judge Mukasey has been on the bench for the past two decades. It’s easy to imagine conservatives making similar distinctions between AG candidates being considered by a Democratic president.