Mukasey's Independent Streak on Terror

Retired judge Michael Mukasey, President Bush's choice to be attorney general, is by all accounts a stalwart conservative who generally took a hard-line, pro-government stand in terrorism cases during his 18-year tenure on the federal bench. But Mukasey has also displayed independence and commitment to the law—most notably four years ago, when he reamed out one of the Justice Department's chief lawyers in the celebrated case of "enemy combatant" Jose Padilla.

The court hearing on January 15, 2003, was arguably the top legal priority for the Bush administration at the time. Paul Clement, then the deputy solicitor general, had been dispatched to New York on what one media account later described as a "suicide mission": an attempt to persuade the tough-minded Mukasey to reconsider a ruling he had made a month earlier. The judge had ruled that Padilla—a U.S. citizen whom Bush had ordered be detained in a military brig without being charged with a crime—should at least be allowed to see a lawyer to challenge the presidential decree.

Mukasey bluntly made it clear to Clement that he had no intention of reversing his ruling. He told Clement his arguments were "absurd" and aggressively questioned whether the Justice Department was going to continue to raise new arguments to get around his ruling. He then sternly ordered the mild-mannered Clement to "take your seat"—a rebuke that raised eyebrows in the courtroom. Andrew Patel, Padilla's lawyer, chortled when he recalled the exchange today. "I can't improve on the language [Mukasey] used in that discussion," said Patel diplomatically.

The jurist not only appeared miffed that the government had failed to take steps to do what he had directed it to do, he seemed genuinely angry that the Justice Department, without going through proper procedures, had tried to introduce a new piece of evidence into the case: an affidavit by then-Defense Intelligence Agency chief Adm. Lowell Jacoby, which contended that the meeting between Padilla and his lawyers (ordered by Mukasey) would gravely damage national security by interrupting the military's interrogation of the accused terrorist. (Mukasey had previously derided the government's contention that Padilla might use his lawyers to send coded messages to terrorists as "gossamer speculation.")

Mukasey's handling of the Padilla case is one reason that some civil libertarians joined with conservatives today in praising the retired judge (who stepped down last year) as a logical choice to replace outgoing Attorney General Alberto Gonzales—and one likely to be confirmed by the Democratic-controlled Senate relatively easily. "There are probably very few things that I would agree with him on, but he's very smart and has tremendous personal integrity," said Patel. Scott Horton, a well-known human rights lawyer who worked with Mukasey for years at the New York law firm of Patterson, Belknap, Webb & Tyler called him a "lawyer's lawyer" who will not "play games" or serve as a rubber stamp for the White House, as many critics contend Gonzales did. "He's cerebral—and very careful about the law and precedent," said Horton. Ruth Wedgwood, a conservative legal scholar at Johns Hopkins University, said Mukasey had almost a "scholastic" approach to the law, and compared his nomination to President Gerald Ford's selection of the highly respected Edward Levi to be attorney general after the trauma of Watergate.

None of this suggests that Mukasey would prompt the Bush administration to reconsider its stands on warrantless surveillance, invocations of executive privilege or any of the myriad other issues that have divided the White House and congressional Democrats. Even in the Padilla case, Mukasey (appointed to the bench in 1988 by Ronald Reagan) upheld the basic Bush administration position: that the president had the right to declare a U.S. citizen an enemy combatant and hold him indefinitely on national security grounds (a scary proposition to many civil libertarians). One lawyer close to Mukasey, who asked not to be identified while his nomination is pending, said that in some respects Mukasey was even more conservative, especially on social issues, than his longtime mentor and friend, Rudy Giuliani. (There was even speculation among legal pundits today that Mukasey, who served under Giuliani in the U.S. attorney's office in New York in the 1980s and has since been an adviser to his presidential campaign, might even stay on as attorney general were the former mayor to be elected president.) 

Senate Democrats publicly took a cautious, wait-and-see attitude toward Mukasey's nomination. Senate Judiciary Committee Chairman Patrick Leahy said his panel will consider Mukasey's nomination "in a serious and deliberate fashion." Democratic Sen. Russell Feingold, a persistent Gonzales critic, said Mukasey "must demonstrate that his first loyalty will be to the rule of law, not to the president." Feingold also signaled he will press the nominee to "commit" to "fully cooperating with congressional oversight of this administration's misconduct." That statement could presage at least some fireworks during Mukasey's confirmation hearings. But Sen. Charles Schumer, another public critic of Gonzales, had publicly praised Mukasey. And after the divisive Gonzales era—and the brutal treatment he received from the Senate Judiciary Committee—even most liberal Senate Democrats seem to be privately welcoming Mukasey's selection and predict a relatively smooth road to confirmation.