Questions for Mukasey

In replacing the man who will forever be known as “embattled Atty. Gen. Alberto R. Gonzales,” President Bush would have liked to reassure senators concerned about demoralization at the Justice Department and supporters who think the attorney general should be a “loyal Bushie.” Michael B. Mukasey, the respected retired judge nominated Monday to succeed Gonzales, accomplishes the first objective but not necessarily the second.

Making a virtue out of political necessity, the White House boasted in a press release that “Judge Mukasey brings to the position of attorney general a fresh perspective and a nonpolitical background.” The statement did not note -- it might have been too painful -- that Mukasey has been praised even by Sen. Charles E. Schumer (D-N.Y.), Gonzales’ nemesis on the Judiciary Committee.

Yet perhaps to counteract the impression that he was capitulating to his critics, Bush hinted at Monday’s news conference that the former judge might be sympathetic to the administration’s practice of pushing the legal envelope in the war on terrorism. Mukasey, Bush said, is “clear-eyed about the threat our nation faces” and would work as attorney general “to ensure that our law enforcement and intelligence officers have the tools they need to protect the United States and our citizens.”

The Senate Judiciary Committee will want to question Mukasey closely about what “tools” he has in mind and, more important, whether he would be willing to use such tools in defiance of Congress, as the Bush administration did in eavesdropping without a court order on Americans suspected of having ties to foreign terrorists. Mukasey also should be pressed about his troubling suggestion in a Wall Street Journal Op-Ed article last month that ordinary courts are “not well suited” to dealing with accused terrorists. (Ironically, Mukasey presided over the successful prosecution of terrorist conspirator Omar Abdel Rahman.)

Sen. Arlen Specter (R-Pa.), a supporter of Gonzales who later lost confidence in him, recently offered this job description for Gonzales’ successor: “a real professional, somebody who understands the difference between being the president’s lawyer and being the chief law enforcement officer of the United States, who has a duty to the American people in addition to being a Cabinet officer.”

Mukasey has questions to answer, but if he can rise above the administration’s ambivalence about the rule of law, he might ably serve as attorney general.