It's not hard to figure out what to expect when Michael Mukasey goes before the Senate Judiciary Committee for questioning on his nomination to become the next attorney general. He'll face questions about his determination to follow through on the investigation into a rash of U.S. attorney firings. Senators will grill him on his attitudes toward the proper balance between security and liberty in the administration's war on terror. And he'll be asked whether he will consider appointing an independent counsel to probe further a variety of matters arising from the troubled tenure of the outgoing A.G., Alberto Gonzales.
But one question that deserves greater prominence at the hearings—and which has not been a big part of the public discussion over his nomination to date—concerns his managerial competence. If confirmed, Mukasey will take over a massive and complex federal bureaucracy suffering from low morale, an exodus of top talent and a series of investigations into the conduct of its leader. Does 18 years on the federal bench qualify him to tackle the challenge?
"The judge is clearly smart, but sometimes smart can get you in trouble," said one former high-ranking Republican Justice Department official, who requested anonymity discussing Mukasey's nomination. "Artillery shells are going to fly, and he'll have to deal with the White House, Congress, U.S. attorneys, the press—all at the same time. No judge is used to that. I'm not saying this about Mukasey, but a lot of judges can be imperious. They don't suffer fools. Plus, he's from New York. I've seen more than one brilliant New Yorker come down to D.C. and stub their toe."
As chief judge of a federal judicial district, Mukasey only had to manage a few hundred employees—and keep tabs on expenditures in the tens of millions of dollars. The U.S. Department of Justice counts more than 100,000 employees and an annual budget in excess of $22 billion. This is arguably like appointing a small business owner, albeit a highly accomplished one, to run a Fortune 500 company.
"There would be many significant differences," observed Bill Joyce, a professor at Dartmouth's Tuck School of Business, "and a need for skill sets that would not have been developed based upon his past experience."
There's no questioning Mukasey's accomplishments, and his experience in the law. From modest beginnings in the Bronx, he graduated from Columbia University and Yale Law School. He spent four years as an assistant U.S. attorney for the Southern District of New York, serving under Rudolph W. Giuliani there and then again in private practice. (They're fast friends, and, if confirmed, Mukasey will have to resign his advisory post in Giuliani's presidential campaign.)
Nominated by President Ronald Reagan to a seat on the federal bench in the Southern District of New York, Mukasey sat from 1988 to 2006, including six years as chief judge. He is now in private practice.
On the bench, he famously oversaw the trial of Omar Abdel-Rahman, the "blind sheik" eventually convicted of plotting to blow up large chunks of Manhattan. (As a result, the judge has endured years of bodyguarding by the U.S. Marshals Service.) In the more recent case of Jose Padilla, the so-called "dirty bomber," Mukasey revealed an independent streak, telling lawyers for the Bush administration in no uncertain terms that the defendant had the right to speak with counsel.
That said, his separate, pro-government decision permitting Padilla's detention as an "enemy combatant" was overturned on appeal.
As for other appeals, an analysis of Mukasey's judicial performance by the Institute for Judicial Studies, publisher of Judicial Reports, reveals a reversal rate roughly on average with his peers on the Southern District (a bit worse than most on criminal matters, a bit better on civil appeals). His sentencing record is just slightly above the median in terms of severity. Both suggest that Mukasey's judicial track record is solidly within the mainstream—and not pushing some ideological envelope.
His record has garnered widespread approval from players as diverse as Bush-bashing Democratic New York Sen. Charles Schumer, former Clinton administration U.S. attorney Mary Jo White and the famously archright editorial page of The Wall Street Journal.
But that impressive track record won't necessarily prepare him for the kinds of decisions he'd make daily at the agency. Think of the shift in what the judge will be mulling over at breakfast. The attorney general serves as lawyer for the president and all executive department heads, as the chief law-enforcement officer in the country, as overseer of drug cops and the nation's prisons, of U.S. attorneys, of civil-rights policy and antitust enforcement—and now there's an increasingly onerous international responsibility, as well.
What's more, the department is widely reported to be dysfunctional and demoralized. Most of the key top posts are currently empty or held by acting officeholders.
"The top two spots are both 'acting' right now," added the ex-DOJ honcho. "You rarely see a pair of vacancies like that filled at the same time."
Asked whether he thought Mukasey had the right resume for the job, Benjamin Civiletti, second attorney general for President Jimmy Carter, said in a phone interview that he didn't know the judge: "All I can say is that I had served as assistant attorney general for the criminal division and as deputy attorney general, so I knew what I was getting into."
Dick Thornburgh, who served as attorney general under President George H.W. Bush, suggested Mukasey would face a "full plate." "The department has been roundly criticized, by common consent, for things not being handled as well as they might have been," said Thornburgh, now in private practice in Washington, D.C. "His first challenge will be to take charge, to show the kind of leadership that will rally the career professionals to his cause and set things right."
Thornburgh should know. When he inherited Justice, Edwin Meese had just left under a cloud of two independent-counsel investigations; the department was widely perceived as adrift. Brought in as a three-month caretaker, Thornburgh himself got off to a bit of a rocky start before steadying the department with the help of an adroit deputy, William Barr—who would go on to succeed Thornburgh in the top job. Thornburgh had served as governor of Pennsylvania, a sprawling bureaucratic challenge with loads of political issues to finesse. The same could be said of Alberto Gonzales's predecessor, John Ashcroft (who had served stints as U.S. senator and governor of Missouri), Janet Reno (five times elected to Florida's Office of State Attorney) and most other attorneys general of recent vintage.
The appointment of federal judges to top law-enforcement leadership roles hasn't always worked out so well. U.S. District Judge William Sessions, tapped to run the FBI in 1987, ran aground during the Clinton administration—amid a hail of charges of ethical misconduct—including claims that he had used government money to install a home-security system, and used an FBI plane for purely personal trips. Though Sessions was ultimately cleared of wrongdoing, he was fired from the job in 1993.
Thornburgh points out that President Carter's first attorney general was Griffin Bell, a former federal appellate judge who left the A.G.'s office with kudos from both sides of the aisle. Bell may have benefited, however, by inheriting a department in good working order from his predecessor, Edward Levi—who was all but beatified during the past weeks' worth of speculation about a replacement for Gonzales. "Well, that's true," conceded Thornburgh. "Ed Levi had left the place in pretty darn good shape."
How would Thornburgh gauge the early success of Mukasey's tenure, should he be confirmed? "You'll have to see how he fills those top spots at the department," said Thornburgh, "because right now, there's almost nobody home."