Former federal judge Michael Mukasey, a tough-on-terrorism jurist with an independent streak, was tapped by President Bush on Monday to take over as attorney general and lead a Justice Department accused of being too close to White House politics.
Mukasey, the former chief U.S. district judge in the Manhattan courthouse just blocks from ground zero, will likely face a relatively smooth confirmation by a Democratic-led Senate that has demanded new Justice Department leadership for months. He replaces Alberto Gonzales, a Texan who announced his departure three weeks ago amid investigations that began with the firing of U.S. attorneys and mushroomed into doubts about his credibility.
Appointed to the bench in 1987 by President Reagan, Mukasey also worked for four years as a trial prosecutor in the U.S. attorney’s office in New York’s southern district — one of the Justice Department’s busiest and highest-profile offices in the country.
“The department faces challenges vastly different from those it faced when I was an assistant U.S. attorney 35 years ago,” Mukasey, 66, said as he stood next to Bush on the White House lawn. “But the principles that guide the department remain the same: to pursue justice by enforcing the law with unswerving fidelity to the Constitution.”
Mukasey said that, if confirmed, he hopes to give Justice employees “the support and the leadership they deserve.”
Bush had a close personal relationship going back to Texas with Gonzales, whose resignation was effective Monday. He does not have such ties with Mukasey.
Mukasey had an interview with White House staff on Aug. 27, the day Gonzales announced his resignation, a senior administration official said. The president then met Mukasey on Sept. 1 and spent an hour with him.
Bush on Monday called Mukasey a “tough but fair judge” and praised his reputation as a smart and strong manager.
“Judge Mukasey is clear-eyed about the threat our nation faces,” Bush said.
Senators who will vote on Mukasey’s confirmation stopped short of pledging to support him. But most agreed to try to begin quickly confirmation hearings to fill more than a half-dozen vacant senior positions at the scandal-scarred Justice Department. The department has been under siege for months over criticism it was too closely tied to politics under Gonzales’ reign.
“I think that he’ll not only provide the president with first-rate legal counsel, but this nomination will go through Congress without much, if any, partisan politicking, and I think the country needs a break from another explosive, controversial nomination,” said Sen. Joe Lieberman, I-Conn., who knew Mukasey at Yale Law School in the mid-1960s.
There was even a sign of compromise in a simmering fight between the White House and Senate Democrats who want the administration to hand over data about its terrorist surveillance program. Senate Judiciary Chairman Patrick Leahy, D-Vt., initially threatened to hold up Mukasey’s nomination until the White House gives up the information.
“Our focus now will be on securing the relevant information we need so we can proceed to schedule fair and thorough hearings,” Leahy said. “Cooperation from the White House will be essential in determining that schedule.”
Later Monday, Leahy said he had been assured by White House counsel Fred Fielding that the Senate panel would get at least some answers to its questions about Gonzales’ conduct in the Bush administration’s wiretapping program and interrogation methods.
Mukasey oversaw some of the nation’s most significant terror trials in the years before and after the attacks of Sept. 11, 2001.
He sentenced so-called “blind Sheik” Omar Abdel Rahman to life in prison for a plot to blow up New York City landmarks, and he signed in 2002 the material witness warrant that let the FBI arrest U.S. citizen Jose Padilla. That warrant marked the start of a case that wound its way through several federal courts as the government declared Padilla an enemy combatant and held him for 3 1/2 years before he was convicted last month on terrorism-related charges.
In an opinion article published last month in The Wall Street Journal, Mukasey criticized U.S. national security law as too weak in some areas by noting that prosecutors are sometimes forced to reveal details of cases at the risk of tipping off terrorists. He is also a supporter of the government’s anti-terror USA Patriot Act, wryly writing in 2004 that the “awkward name may very well be the worst thing about the statute.”
Yet Mukasey also criticized the Bush administration while he was on the bench.
In December 2002, Mukasey ordered the government to let Padilla talk to a defense attorney. Prosecutors who initially resisted were rapped three months later in a terse and sternly worded response from the judge.
“Lest any confusion remain, this is not a suggestion or a request that Padilla be permitted to consult with counsel, and it is certainly not an invitation to conduct a further ‘dialogue’ about whether he will be permitted to do so,” Mukasey wrote in the March 2003 order. “It is a ruling — a determination — that he will be permitted to do so.”
That ruling offered a glimpse of what colleagues describe as Mukasey’s trademark brusqueness and impatience with people who waste his time. But it also endeared him to the liberal-leaning American Center for Law and Justice, which supports his confirmation, while raising a red flag for conservatives with whom Mukasey met Sunday to try to appease.
Sen. Arlen Specter, top Republican on the Senate Judiciary panel, urged his colleagues to begin Mukasey’s confirmation quickly.
“There is no doubt that the Department of Justice has been in disarray for some time,” said Specter, R-Pa. “So that I think it is very important to act promptly, not with undue haste, getting an opportunity to review Judge Mukasey’s background.”
Assistant Attorney General Peter Keisler will serve as acting attorney general during Mukasey’s confirmation process. Keisler, who has been nominated for a federal judgeship, had planned to resign from the Justice Department but agreed to stay on to free up Solicitor General Paul Clement — the department’s highest-ranking Senate-confirmed official — to focus on Supreme Court hearings that begin next month.
Mukasey, a partner at New York-based law firm Patterson Belknap Webb & Tyler, is also a close friend to former New York Mayor Rudy Giuliani, a Republican. He is stepping down as an adviser to Giuliani’s presidential campaign, on which he served as part of an advisory committee on judicial nominations.
Mukasey did not suffer fools lightly from the bench — and probably wouldn’t if confirmed to the 15-month stint at the Justice Department.
“He wanted to get right to the core of the issue,” said Michael Horowitz, a former senior Justice Department prosecutor who argued several cases in front of Mukasey. “He was always prepared and he knew the issues. So he didn’t need a lot of the background, a lot of the fluff that you often get in arguments.”
Still, Mukasey may have some learning to do in Washington.
“The big question is whether he can successfully make the transition from a judicial mind-set to a political one,” said Brad Berenson, a lawyer who formerly worked in the counsel’s office of the Bush White House and called Mukasey honorable and smart. “The jobs of being a judge and a Cabinet official are very different, and so are the necessary approaches to leading and making decisions.”