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The president has nominated former federal judge Michael Mukasey to serve as the next attorney general. The Senate will have plenty of questions to ask and issues to raise, and it should take this confirmation seriously. But it should move expeditiously to approval, recognizing that this is the first essential step towards taking the Justice Department off of life-support and making it a functioning agency once more.
I have known Michael Mukasey for over twenty years and I have a pretty good sense of his views on a great many issues. Frankly, there are not many issues on which we agree. I am a civil libertarian and human rights advocate, while Mukasey is driven by a concern for national security–his many years on the bench tell him that our criminal justice system is inadequate to the task of trying terrorists. I recently parsed his op-ed in the Wall Street Journal looking for some important points I could agree with, and struggled to find them. Many of the civil liberties that Mukasey sees as vulnerabilities I see as strengths.
Nevertheless, I consider Mukasey a highly qualified candidate and am prepared to support him with enthusiasm. Why? First, the president is entitled to nominate a candidate who represents his views on legal policy. I don’t think there’s room for a ray of light to pass between the Bush Administration and Mukasey, frankly. Mukasey has been close to Rudy Giuliani for many years, but those who know him also recognize that Mukasey is more of a traditional social conservative than Giuliani, which is to say he is actually closer to Bush than to Giuliani on a series of legal policy issues. Critics who argue that the next attorney general should turn from the Administration’s viewpoint are not being realistic. That is not the way our system works, and to hold to such a posture would only result in an administrative gridlock that would serve no one’s interests.
Second, Mukasey is not just a prominent judge, he is a judicious personality. That is to say, he has one much-underrated quality in abundance: the ability to listen carefully, weigh facts and arguments, and then form decisions. He does not rush to judgment. Having an attorney general who can listen carefully and deliberate will be a refreshing change. Mukasey will be a perfect person to lead a discussion of the current policy issues on the horizon—over extension and modification of FISA, over military commissions, over the national security court, and similar matters. He will represent Bush faithfully and advise him well; but he will also listen carefully and ensure a more effective effort to form a national consensus on these matters than we have seen up to this point.
Third, Mukasey is a lawyer’s lawyer. He actually cares a great deal about the law and what it provides; he approaches a question very carefully and with appropriate respect and deference for statutes and precedent. He knows how to separate and he does separate his own political views from what the law says. We haven’t had an attorney general like that in quite a long time and we’re past due. In fact, having an attorney general who places emphasis on the traditional virtues of a great profession will be a very good thing for the Bush Administration and for the Justice Department.
Fourth, the Department of Justice faces a crisis of morale and confidence the likes of which it has rarely seen in American history. The only recent parallel was in the months following Watergate, when Gerald Ford chose Edward Levi as attorney general (and that nomination is certainly the closest in modern times to the selection of Mukasey). Mukasey is a man who first made his career as a prosecutor working for the Department of Justice and who was clearly moved, long into his later career, by love for the Department. That makes him a perfect person to address the internal problems of the department. We face a number of pressing policy issues relating to law and the administration of justice, but they are all somehow dwarfed by the institutional troubles of the Department of Justice. This great ship has been tragically steered into a shoals and it is now in real danger. I think Mukasey is just the pilot to steer it clear again.
Civil libertarians will find no shortage of things to dislike about Michael Mukasey. But they should stop and recognize that he reflects the fundamentally conservative values which are essential to making our government work, and which have been often missing in a government that calls itself conservative, but really is not. Mukasey is a true conservative in much the same sense that Edmund Burke was a conservative. And perhaps that’s the strongest argument that can be mustered for his confirmation.
More from Scott Horton:
Conversation — March 30, 2016, 3:44 pm
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“Matt was happy enough to sustain himself on the detritus of a world he saw as careening toward self-destruction, and equally happy to scam a government he despised. 'I’m glad everyone’s so wasteful,' he told me. 'It supports my lifestyle.'”