Nominee is drawn into an old fight

Times Staff Writer

Former federal Judge Michael B. Mukasey, nominated Monday to succeed Alberto R. Gonzales as attorney general, has credentials that normally would assure swift confirmation. But he was immediately plunged into a long- running fight between Senate Democrats and the White House over the limits of executive power.

Even as President Bush was introducing Mukasey in a Rose Garden ceremony, Democrats indicated they planned to use his confirmation proceeding to exert pressure on the White House to cooperate with congressional efforts to investigate allegations of administration misconduct. A key element in the dispute is access to executive-branch witnesses and memos that the administration repeatedly has declared off-limits.

Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) said his panel would consider Mukasey “in a serious and deliberate fashion.”

But he made it clear that Democrats considered access to at least some of the long-sought administration documents as essential to their evaluation of Mukasey’s fitness to lead the Justice Department.


“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.”

For months, the Bush administration and Democrats have been deadlocked over documents that could shed light on the role the White House played last year in the firing of nine U.S. attorneys. Democrats view the purge as politically motivated.

They also are demanding access to internal Justice Department memos that might provide information on a dispute over whether a pivotal post-Sept. 11 anti-terrorism program was legal.

No one is suggesting that Democrats will hold Mukasey’s nomination hostage until the White House capitulates entirely.

And many Democrats welcomed the news that Bush -- in what they viewed as a conciliatory move -- had chosen the retired judge, who is known for his independence and relative bipartisanship. Mukasey is neither a Bush crony nor an administration insider, as Gonzales was.

Still, Democrats said Monday that they expected Bush to scale back his broad assertions of executive privilege at least somewhat.

“I hope that this nomination is a sign that the White House will quickly reach agreement on providing documents and witnesses in connection with our investigation,” said Sen. Charles E. Schumer (D-N.Y.).

“That is what would be best for the investigation, and it would assure a much less bumpy confirmation process.”

Democrats said they viewed access to the evidence as crucial to asking Mukasey how he was going to address problems at the Justice Department.

“This is a no-brainer,” said a senior congressional aide. “This information is going to be important for the committee to have when they question the person who is supposed to be leading the Justice Department for the remainder of the Bush administration.” The aide, who declined to be named because the committee had not authorized the aide to speak for it, said the material was “absolutely” needed as part of vetting and considering the nominee.

How far the White House is willing to go to meet Democrats’ demands is unclear. For months Leahy has been negotiating privately with White House Counsel Fred F. Fielding for access to the materials, with little evidence of progress. There were signs Monday that those discussions were intensifying in order to avoid an impasse.

Leahy said that Fielding had phoned him and appeared willing to provide some of the information the panel requested. “They aren’t going to agree to everything I’ve asked for, but want to work out some” accommodation, Leahy said. “I take Mr. Fielding at his word.”

A senior administration official said Bush hoped that “political issues, if you will, or extraneous issues, if you will . . . don’t come in the way of swift confirmation of somebody that’s so qualified as this candidate and nominee is.” The official asked to remain anonymous when discussing Mukasey’s nomination.

“As anyone knows, there are many, many openings at the Department of Justice in leadership roles that must be filled, and that’s a very urgent basis,” the official said.

He’s seen as apolitical

Gonzales, a friend and advisor to Bush for more than a decade, left office Friday after months of questions about whether he allowed politics to color hiring practices and prosecutorial decision-making at the Justice Department.

In choosing Mukasey, Bush not only ventured outside his inner circle -- much as he did in installing Robert M. Gates as Defense secretary -- but he chose someone who is widely considered apolitical, largely because of his service on the federal bench over the last two decades.

Republicans said Mukasey was just the sort of highly regarded nominee that Democrats had demanded, and they urged his rapid confirmation. “Now the Democrats must fulfill their own promise to give him a swift and fair hearing,” Republican National Committee Chairman Robert M. Duncan said in a statement.

Sen. Arlen Specter of Pennsylvania, ranking Republican on the judiciary committee, said he hoped that the panel would not get “bogged down” in the document dispute and that it was important to confirm Mukasey quickly to bring stability to the Justice Department.

“Those are all very, very important matters,” he said of the requests. “But I don’t think they are as important as what’s happening in Justice day in and day out.”

Since returning to a private law firm last year, Mukasey has lent his name to the Republican presidential campaign of former New York Mayor Rudolph W. Giuliani, serving on its Justice Advisory Committee -- but that mostly reflects a friendship that extends back to the 1970s, when both men were young prosecutors in New York.

“Judge Mukasey is clear-eyed about the threat our nation faces,” Bush said Monday. “When confirmed by the Senate as attorney general, he will work to ensure that our law enforcement and intelligence officers have the tools they need to protect the United States and our citizens.”

Few people know the threat more acutely. Mukasey presided over the 1996 trial of the so-called Blind Sheik, Omar Abdel Rahman. The Egyptian cleric was accused of hatching a plot to blow up the United Nations and other New York City landmarks.

After receiving death threats during the trial, the judge was assigned a 24-hour security detail of U.S. marshals, who continued to shadow him for years after the verdict because of concerns about his safety. Abdel Rahman was sentenced by Mukasey to life in prison for what was one of the first cases of Islamic terrorism prosecuted in a U.S. courtroom.

“The department faces challenges vastly different from those it faced when I was an assistant U.S. attorney 35 years ago,” Mukasey said in brief remarks at the White House. “But the principles that guide the department remain the same -- to pursue justice by enforcing the law with unswerving fidelity to the Constitution.”

In the name of law

Mukasey is considered a conservative jurist who subscribes to a narrow view of the Constitution. He is also considered pro-government when it comes to national security issues. But observers said they did not find him to be openly political.

Some Gonzales aides have acknowledged in congressional testimony that they considered the political leanings of applicants when filling career positions at the department -- a potential violation of federal law.

“I couldn’t imagine him doing those things,” said a New York lawyer who was a clerk for Mukasey when he was a judge. “I am a liberal, and if he had vetted me for political credentials, I never in a million years would have been hired.” The former clerk asked not to be named when discussing the nominee.

“He is a real judicial conservative, but he believes in applying the law,” said the former clerk. “I never, ever had a problem in working for him. I never felt he was writing ideology into the law.”

Although he has never worked in Washington, Mukasey was a protege of Harold Tyler, a Republican judge and New York lawyer who had his own turn trying to shore up a morale-battered Justice Department. Tyler was lured to Washington to become the top deputy to Atty. Gen. Edward H. Levi at the Justice Department after the Watergate scandal.

Bush considered other candidates and even interviewed some of them, administration officials acknowledged.

Former Solicitor General Theodore B. Olson, who successfully argued the case of Bush vs. Gore before the Supreme Court in 2000, apparently was hurt after his name was floated in media reports and Democrats vowed to oppose him. Bush chose Mukasey in part because he thought it would avoid a protracted confirmation fight.

“The president wanted to get the person that he thought was the most qualified. He wanted to be comfortable that that was what was going to be the final criteria,” the senior administration official said. “Obviously, if that same person with the same qualifications would also be easier to confirm or would have a more realistic ability to be confirmed, that would be a factor that was considered. It was not a determinative factor.”

Bush and Mukasey had never met before the men discussed the attorney general’s job at a meeting at the White House on Sept. 1, the administration official said. Bush called the judge Friday and offered him the job.


Times staff writer James Gerstenzang contributed to this report.



Judge’s opinions

Michael B. Mukasey’s thoughts -- written and spoken -- from some of his biggest cases as a judge:

“I really cannot believe and I do not believe that it didn’t occur to you that this was a reargument motion. . . . That’s just absurd.”

-- Mukasey in January 2003, reacting angrily to a request by then-Deputy U.S. Solicitor General Paul D. Clement, who is now solicitor general. Mukasey was upset by a Justice Department request that he change his decision granting accused “dirty bomb” plotter Jose Padilla access to lawyers. Mukasey said the government’s arguments were “permeated with the pinched legalism one usually encounters from nonlawyers.”

“Those to whom images of catastrophe come that easily might take comfort in recalling that it is a year and a half since Sept. 11, 2001, and Padilla’s is not only the first but also the only case of its kind. . . . There is every reason to hope, but also to expect, that this case will be just another of the isolated cases . . . that deal with isolated events and have limited application.”

-- Mukasey in a March 2003 written opinion dismissing suggestions by criminal defense lawyers that the Padilla case marked a disturbing turn toward dictatorship for the United States.

“Forgive me if it sounds coldhearted, but people who are killed by people with limited capacity are just as dead as people killed by geniuses.”

-- Mukasey in January 1996, sentencing a co-conspirator in the terrorist plot to blow up New York City landmarks. Lawyers for one of the defendants had argued that he should be spared a long prison sentence because he was borderline mentally retarded. Mukasey also sentenced Sheik Omar Abdel Rahman in that case, saying that if the plot had succeeded, it “would have resulted in the murder of hundreds, if not thousands of people, and brought about devastation on a scale that beggars the imagination, certainly on a scale unknown in this country since the Civil War.” Before being given a life sentence by Mukasey, the blind sheik told the judge the case was “nothing but an extension of the American war against Islam.”


Source: Associated Press