The nomination of Michael Mukasey to the post of attorney general presents a difficult problem for those concerned with the lawless behavior of the Bush administration. Mukasey has received significant support from Democrats; indeed, New York Senator Charles Shumer has said "I don't know of a single Democrat (on the panel) inclined not to support him."
Progressives should not be under any illusion that George Bush will nominate an acceptable choice for attorney general. However, in light of Mukasey's performance under questioning, the Senate should reject his nomination. In particular, his refusal to reject arbitrary executive power and torture by the American government should mean that Democrats cannot add their support to his nomination.
The usual caveats about conservative candidates certainly apply. As Emily Bazelon pointed out at Slate, Mukasey's record as a judge raises concerns about his record on civil rights. This includes, for example, his disturbing treatment of a gender discrimination case while he was a federal judge in New York: He threw out a woman's claim, was reversed by the 2nd Circuit Court of Appeals, and then threw out a jury verdict in her favor (and was once again reversed by the 2nd Circuit.) The Department of Justice under Mukasey is likely to keep trying to push the law in the directions suggested by the Supreme Court's narrow reading of civil rights law in the Ledbetter case, and will reflect statist conservative priorities in other areas as well.
These concerns, however, simply underlie the obvious: Mukasey is a very conservative nominee by a very conservative president. Going into the nomination hearings, this was how most progressives approached the entire matter. Given Bush's ongoing presence in the White House and that someone has to serve as attorney general, whether we would appoint Mukasey was not the relevant metric. Rather, the question here was how he compares to other people Bush might appoint, and on this basis one can argue that his record is probably as good as can reasonably be expected.
It's worth remembering that Bush's last appointment managed against all odds to be considerably worse than John Ashcroft. Unlike the hapless Alberto Gonzales, Mukasey seems to be competent and isn't a long-time Bush lackey. Like Ashcroft (who appointed Patrick Fitzgerald to investigate the Plame leak and resisted some of the most egregious lawlessness proposed by the administration) Mukasey is likely to be independent enough to be a conservative attorney general as opposed to an abject disgrace to the office like Gonzales. In addition, his treatment of the Jose Padilla case suggests at least some measure of independence from the Bush administration's worst excesses. Mukasey upheld Padilla's right to counsel and to review unclassified evidence, rejecting the most extreme claims of unfettered executive power on the part of the Bush administration.
It is also fair to note that the president is entitled to a substantial level of ideological deference when picking cabinet members (as opposed to lifetime members of the judicial branch, where ideological scrutiny is appropriate.) This is, however, a little less true of the attorney general than most other executive departments, because of the importance of the office to the fair enforcement of the law. The Senate should not be a rubber stamp even if it's established that Mukasey has passed minimal standards of competence (and obviously there can be little question that Mukasey meets this test.)
Before the hearings, then, I was fully prepared to endorse Mukasey as the least bad option. This was contingent, however, on his backing away from the policies of the administration on two crucial questions: arbitrary executive power and torture. However, Mukasey's testimony at the second day of hearings was unacceptable. On the issue of executive power, for example, he did not fully repudiate the lawlessness of the Bush administration but rather asserted that the executive can violate congressional statutes under circumstances where the executive claims broad authority to "defend the nation," which (given the vague contours of national security claims) allows the executive potentially substantial discretion to ignore valid congressional statutes. As Marty Lederman pointed out, Mukasey strangely cited the Prize cases in defense of administration lawlessness, although in that case -- which involved the blockade of Southern ports in the initial stages of the Civil War -- Lincoln initially acted in the face of congressional silence (rather than in defiance of a statue, as the president did with FISA) and later had his actions retroactively authorized by Congress.
And on torture, he once again refused to repudiate the ability of the American government to torture individuals, following up his pro forma opposition to torture in the abstract with a refusal to disavow actual methods of torture. Given that the Yoo strategy for getting around legal prohibitions on torture was to simply define various forms of torture as not-torture, this is highly disturbing indeed. Mukasey's performance at the hearings, then, suggest that he is very likely to go along with policies that are threatening to both civil liberties and the effective protection of national security.
Although it is a close call, the best course for the Senate would be to vote to reject Mukasey's nomination. This is not because I have any illusion that a substantially better nominee is forthcoming. Still, given the many atrocities at the Department of Justice under Gonzales, it is important for the Senate to send a signal that lawlessness in the executive branch and the endorsement of torture are not negotiable issues. As Jamie Mayerfeld, a Professor of Political Science at the University of Washington and a specialist in human rights law, told me: "If the Senate Democrats approve Mukasey, they will share responsibility for the institutionalization of torture. They will have knowingly confirmed for attorney general a man who refuses to state that methods actually constituting torture are against the law."
Moreover, as Mukasey's refusal to repudiate the administration on these issues indicates, it will be virtually impossible for anyone to function as a good attorney general at this late date, making the costs of rejecting him much lower than they would have been when Gonzales was nominated. (Remember that some of the administration's most disgraced figures, such as Donald Rumsfeld, were relatively well-respected prior to their involvement with this administration.)
What is especially disturbing about the hearings is the extent to which claims about the validity of arbitrary executive power and the de facto support of torture have become mainstream Republican positions. In the overwhelmingly likely event that Mukasey is confirmed, Congress at the very least needs to be far more vigilant about using the tools at its disposal to reign in an administration that has repeatedly transgressed constitutional and statutory constraints. As its impending rollover on FISA (including the especially appalling decision to retroactively immunize companies that helped Bush violate the rights of American citizens) indicates, however, one cannot be optimistic. Setting clear standards for what is required of an attorney general would be a much better first step.