Mukasey in My Backyard

Who would have thought it? Among the Long Island weekenders chatting in my backyard just before Memorial Day might be the next attorney general of the United States: former federal judge Michael B. Mukasey, my college classmate, senior-year roommate and fellow student newspaper editor at Columbia College 45 years ago.

The most notable thing about Mike's presence at the backyard gathering was that, for the first time in years, he was unaccompanied by the armed security team that previously accompanied him. The security detail was mandated in 1993 after Judge Mukasey imposed a life sentence on Omar Abdel-Rahman, the so-called "blind sheik" behind a foiled attempt to bomb New York City landmarks after the first attack on the World Trade Center.

During previous visits, Mukasey's bodyguards usually stopped by in the morning to find out who else was invited that afternoon, and if any of them also had "protection"—to reduce the likelihood of an accidental firefight on my front lawn.

Still, their presence wherever Mike and his wife, Susan, went for years (and probably soon again) was a palpable symbol of just how deep he had gotten into the nation's war with terror, long before most of us realized we were in it.

Clearly what he learned about Islamic terrorism, and what he saw as the limits of traditional criminal prosecution during that landmark trial, helped make Mike a strong law-and-order judge. And it was that experience that made him President Bush's choice to reclaim some credibility for the embattled Justice Department, despite Mukasey's occasional ruling against administration policy—notably its denial of the right to defense counsel for "enemy combatant" Jose Padilla.

Mukasey was no conservative at Columbia. As a roommate he was quiet and intense but also a good pal. And after a hard night's studying he was often ready to jam us into his VW and drive from Columbia's Upper West Side campus to Brooklyn's Coney Island for Nathan's hot dogs and fries. At the Columbia Daily Spectator, where he was editorials editor in our senior year, the archives reflect his sharp pen and progressive thinking.

Urging withdrawal from the student loan program of the National Defense Education Act because of an amendment making it a crime for applicants to be members of any organization deemed subversive under the 1950 McCarren Act: "… the provisions of the McCarren Act defining what constitutes a communist organization or membership in one are frighteningly vague … applying for a loan is irrelevant to subversion and should not be criminal for subversives and innocent for others … to anticipate what might be construed as opposing the national interest can only stifle free expression."

Supporting a Columbia physician who called for decriminalizing abortion: "This is strong medicine and by urging it Dr. Hall has left himself open to the vilest of charges: that he is amoral, that he is heretical, that he is no better than Hitler. These accusations hardly bear consideration. The doctor is intensely moral; he leaves religion where it belongs, in the conscience of the individual; he takes for granted the difference between abortion and mass murder."

Denying there is a basis for public-school prayer in the Constitution: "Many supporters of prayer in the schools have argued that the founding fathers were religious men and would have approved of prayer in the schools, and that the country has achieved eminence partly because of its religious values. These arguments are not only debatable, they are irrelevant."

If you had told Mike then that one of his high-profile assignments before ascending to the bench would be going before the Bar Association to defend Roy Cohn, onetime aide to Red-baiting Sen. Joseph McCarthy, it's hard to imagine him smiling.

But people change with time. As a journalist, I never felt it appropriate to talk with Judge Mukasey about the big issues that had or might come before him. But there were clues, like the neocons who showed up at his backyard parties, along with his former fellow assistant U.S. Attorney, Rudy Giuliani.

More recently, Mike's public comments about the need for special judicial procedures to handle terrorism cases have struck some lawyers as a form of campaigning for the Bush administration's increasingly conservative Supreme Court. Democratic Sen. Charles Schumer, we now know, proposed him as an acceptable Republican for that high honor at least three years ago.

Did Mukasey himself ever imagine that? Possibly. Not long after the Landmarks Bombing case, another classmate and I had dinner with Mike, whose name had just appeared in a pro-Israel newspaper ad. We joked about him getting the high court's next "Jewish seat." But he took it seriously enough to launch into a declaration of satisfaction with his current judicial role—with no higher ambitions—which, we agreed afterward, sounded much like a nondenial denial.

Of course, Mukasey must make his mark at Justice first. Although clearly a far smarter, sharper, more independent legal practitioner than Alberto Gonzales, he has just over a year to restore morale, fill numerous vacancies and demonstrate an appropriate distance from the White House. It seemed to me and other Columbia classmates at a lunch this week that Mike's latest assignment is a little like being hired to clean up after queasy elephants at the circus—but not being sure there is enough time, or if the circus owner really wants the job done.

We have to wish him the best of luck, of course, for his own sake and the nation's.

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