Mukasey must be blocked.

Why any Democrat would want to confirm him is beyond me.

Set aside the whole "we're better off with no AG, because that way they can do less damage" argument.  That argument has a lot of force, and I like it a lot, but it's better set down for a later time.

No, the best reason to not confirm Mukasey is that he is the first member of the Giuliani cabinet.


Well, yeah.  He's very close to Giuliani.  

How close?

Well, read this from today's NY Daily News (the first line is the headline) :

Bush to name Giuliani ally as attorney general
Retired New York Federal Judge Michael Mukasey, a close ally of presidential hopeful Rudy Giuliani, is President Bush's choice for attorney general.

Sources said Bush plans to announce today he will nominate Mukasey to replace embattled top cop Alberto Gonzales.

 * * *

Mukasey, 66, a former federal prosecutor who was appointed to the federal bench in 1987 by President Ronald Reagan, served six years as chief judge and retired last year to become a partner with a New York law firm.

A graduate of Columbia College and Yale Law School, Mukasey currently serves as a legal adviser to the Giuliani campaign and was the judge who swore in Giuliani as mayor.

Now, let's look at three angles of the many this presents.

First, given that Giuliani is the likely Rethug nominee, do you really want the guy who is his campaign legal adviser to be the chief law enforcement officer of the United States?

Do you want the guy who is Giuliani's campaign legal adviser to be in charge of voting rights enforcement during the election when Giuliani will need all the help - legitimate or not - he can get to win, particularly in light of (a) the DoJ spending a whole bale of time, money and effort over the last six-plus years on disenfranchsing Democratic voters and (b) given that New York City is also subject to the Voting Rights Act enforcement provisions because of its history of discrimination?  Y'think Mukasey might know a bit about the ins and outs of the Voting Rights Act and how it was abused during his buddy Giuliani's terms as mayor?

Do you want the guy who is his campaign legal adviser to be in charge of deciding which public corruption cases to prosecute, and which not?

Do you want the guy who was a judge and later chief judge when civil rights cases over things like, um, strip-searches, warrant abuse, police thuggery, and all the other atrocities Giuliani perpetrated came before the federal courts?  And Giuliani won a few of those rounds, too?

Understand this - while a federal district judge has a lot of power (in and out of the courtroom; I'm told that in NYC they'll hold the curtain on Broadway for one to arrive) - in most all situations the district judge is merely applying existing law and principles of law to factual situations.  It is not a policy-making position.  In the position of AG, it is all policy-making and, there, the personal politics and friendships and favoritism of the AG are all-important.

Next angle:  if Mukasey is confirmed now as AG, that means he can continue on into the next administration - assuming its a Giuliani administration - without undergoing another confirmation hearing. AG Jekyll now, AG Hyde later.  Remember, he "serves at the President's pleasure."  He can be counted on to do anything which pleases his putative boss.  I'd include trying to shape the election to favor his friend.

A third angle, and perhaps the most important:  a lot of people have been all "ooh" and "aah" about "Mukasey ruled against the Administration on Padilla, at the beginning of the case."  To that I say "big deal.  That's no reason to confirm - or even consider - him".


Because that was not some "Stand up for the Rule of Law" ruling, like so many of the other observers have posited.  Look at his WSJ editorial, advertising his availability for the job - he likes torture and warrantless wiretapping.  No, he ruled against the government in Padilla for three reasons.  In reverse order of importance, these are:

1.  Precedent required it.

Anyone who's read the opinion, or who observed the Padilla case at the beginning, knew that the precedent then existing made Padilla's case pretty much a slam-dunk for Padilla getting the writ of habeas.  The courts were open and functioning and he was in custody.  That's what Ex Parte Milligan required, that's what Padilla pleaded, and that's what existed.  

All the other cirucmlocutions and chicanes which the government interposed were both unprecedented and carefully scripted for the appeals they would be taking to more-friendly appellate courts, where they intended to change the existing law requiring habeas for Padilla, into law making habeas optional or worse.

Mukasey knew he was going to be appealed.  He followed the law and punted the policy to the appeals courts, where fellow Rethugs could do the Admin's dirty work, changing the law for the Admin.  

2.  He was offended that the government spirited Padilla out from under his jurisdiction.It's easy for a party to have to be the appellant - irk the trial judge.  In this case, by getting an adverse ruling in the Padilla case at the trial court, the Admin was handed the golden opportunity to shape its appellate arguments exactly in the way it wanted.  

An appellant can only appeal from the judgments and parts of judgments which were decided adversely to it in the lower court.  When the Admin wanted to go after habeas, they deliberately made it easy for themselves to get as many grounds as available by taking radical positions and being offensive to the Court.

Don't kid yourself.  

Going after habeas was not some spur of the moment thing on the part of this administration.  Between the Prison Litigation Reform Act of 1995 - which limited habeas and subjected prisoner suits to clerk's review upon filing (the Clerk, and not a judge, would decide whether the case could even be filed) and AEDPA of 1996 (which gutted habeas' availability) and a plethora of S.Ct. decisions nibbling away at and eroding the habeas rights, anyone with eyes should have seen that eliminating habeas' availability was a long-term objective of the Repugs.  They'd been working on it for easily as long as thirty years - since bringing in the Southern strategy.  

Padilla - and getting to appeal and make their arguments for gutting the habeas Padilla had received to courts they'd stacked - was the keystone.  Well, maybe not the keystone, but almost - they couldn't count on O'Connor and needed to string things out until age and time got her off the scene.  They got time to string things out.

To start this off, they took the easiest way to ensure an adverse ruling.  They offended the judge.  They spirited Padilla out from under the judge's jurisdiction, and thumbed their nose at him.

3.  He was protecting his own power as a judge.

That was the most important part of his ruling in Padilla, but not for the reasons too many would be thinking.  It's not that he has any great appreciation for preserving the power of the judiciary.  It's that he was more interested in exhibiting that he will preserve and wield the power of whatever office he holds.  

Remember, Kyle Sampson, the pudgy mini-Rove ensconced in the DoJ?  If his testimony is to be believed (and I don't), he spent all his time collating and collecting the information on whom to purge and who not, but never remembering who sent it to him.

But, it was Kyle Sampson who also wrote an email advising use of the temporary appointment power for replacing wobbly US Attorneys with Loyal Bushies, in which he said:  "What's the use of having this power if we don't use it?"  Congress will take it away if they figure out why we wanted it.  

This is about power, wielding it, and preserving it.  In the hands and office of the AG.

To get to be a federal judge in NYC (or, for that matter, any large city in the US), one need not just be a darn good lawyer in a city full of darn good lawyers.  One must also be political - no surprise there - and one must be quite tough.  The density of lawyers in NYC and the intensity of both their practice, the competitiveness inherent in the practice of law and the stakes at issue in litigation should make it clear to any observer that the personalities become outsized.  Think of a room full of Bruce Cutlers - trying to take over the courtroom.  Judges have to ride herd on that and exert their will to even move their cases.  Thinking back, IIRC, Gerry Spence was compelled - by a snarl from the presiding judge - to leave his buckskins and cowboy hat when he represented Imelda Marcos.  The personalities, authoritarian tendencies (necessary to keep in check the huge personalities of the lawyers appearing in the court) and the sheer deference afforded federal judges in large cities (like holding a Broadway curtain for one to arrive) ensure that one of the primary personality traits those federal judges have is the ability to hold, wield and expand their power.  Had they not had that, they would have been roadkill on one of the Avenues long before they ever got appointed as a federal judge.

Now, we are expected to believe that given the unprecedented expansion of power in the AG recently bestowed by the new FISA (among other things) and the rampant power grabs of this Admin, as yet un-undone, a judge (or any other person) whose entire career has been marked by exerting power will not use those powers?  Will not do everything in his ability to preserve those powers?

And a person who is extremely close to the leading candidate of the Rethug party will not exert (or fail to exert) those powers to benefit that candidate or harm his opponent?

And that this person would be appointed by this president to be the chief law enforcement officer of the United States even though we're supposed to believe he might be at variance with the philosophy of this President?

Please.  That's why this quote in the article cracked me up:

"They also fear that he'll cave to demands for a special prosecutor," the source said.

He would never have been considered had he not wink-and-nodded that the idea of a special prosecutor, is off the table.

No, if in this jungle Olson was the roaring lion stalking your rights, Mukasey is the snake in the grass that you'll never see until it's way too late.  But, they're both Bush-wielded pointed sticks in your eye.  For that reason, he should be blocked.  

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  • Display: Sort:
    There won't be a Guiliani administration... (none / 0) (#1)
    by YatPundit on Mon Sep 17, 2007 at 11:51:52 AM EST
    thank the goddess, but I agree that the nomination should be blocked.  The SJC should refuse to hold hearings and Reid should not allow a vote to come to the floor.  The response to the howls from the Mighty Wurlitzer should be simply, Bush has violated the public trust so often that there's no point in considering any more of his nominees.

    If there's any doubt how much (none / 0) (#2)
    by scribe on Mon Sep 17, 2007 at 12:33:17 PM EST
    Bushie wants Mukasey, consider this:

    He put Peter Keisler in place as acting AG until Mukasey is confirmed.  Just as a throw-in, mind you.  And this in the face of having previously indicated Paul Clement would be the Acting AG until Gonzo's successor was confirmed.

    Going back to look at Mr. Keisler, I wrote an extended diary some time ago, detailing why he had to be blocked from a then-pending appointment to the D.C. Circuit.  I'm happy to say, Keisler's nomination to that job went nowhere.  Just a brief review of his "qualifications" are in order:
    Board of Directors of the Federalist Society.  At Yale, Keisler roomed with its founders.
    About Keisler, a former law clerk, Bork says "he's one of my favorites".  
    Keisler helped shepherd Bork's nomination, as well as Doug Ginsburg's and Anthony Kennedy's, too.  
    Kennedy gave him a clerkship.
    He helped investigate Iran-Contra, analyzing the legality of the arms sales.  Those files are still sealed.
    He signed off on that decision reducing the amount tobacco companies had to pay, from $130 Billion, to about $10 Billion, in the government's racketeering case against them.
    Keisler had been a very early - 2001 - Bushco nominee to the 4th Cir. for a Maryland seat, but his nomination was blocked by Maryland senators because while he might live in Md., he never practiced there.  So, Bushie moved him over to DoJ.
    And, remember, he was nominated to the D.C. Cir. within two weeks of losing Hamdan to Lt. Commander Swift.  Right about the same time Swift got his walking papers.

    Now, why would Bush put such an odious non-starter as Keisler into the Acting AG slot?  Especially when he already had the highly competent Clement already there?  To make Mukasey look good by comparison, maybe?

    And why would Bush want to make Mukasey look good by comparison?

    You answer that....

    Just remember when answering:  you cannot be too cynical when analyzing this Administration.