Michael B. Mukasey’s nomination for Attorney General has been met with nearly universal acclaim. And I really mean universal – the standard bearers of conventional wisdom made approving noises, there were plenty of quotes from Democrats and Republicans and most surprisingly even the online community seemed largely approving. From the left to the right there were notes of caution sounded but overall it seemed like one of the very few times there was widespread agreement. It also deserves to be defeated, and here’s why.
First let’s go back to what seems like another time, back before George W. Bush assumed primary custody of the law. Article II, Section 2 of the Constitution says “The President…shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law”. I don’t recall seeing a single mention of the Senate’s “Advice and Consent” role on the nomination, and it really is as though the President has been able to make everyone forget about what exactly the government is doing and how it should act. Instead we had legislators, reporters and analysts speculating on different potential nominees like children gazing in wonder at so many gift wrapped Christmas presents. There is no sense that the process wasn’t designed to work like that or that maybe more should be involved than just waiting breathlessly for Bush to unveil his choice.
There is no record (that I know of, anyway) of George Bush seeking the advice of the Senate, yet he is constitutionally obligated to do so. His style in this as in much else is more authoritarian than democratic, because he makes his choice in the shadows and then tells the Senate its only role is to cast an up or down vote. He doesn’t believe in meeting with Senators with a list of potential nominees or talking informally to them about what qualities they’d like to see or heaven forbid if they have any names they’d like to throw out there themselves. At no point does he seek out the advice of the Senate and for that reason alone they should reject Mukasey. In fact, for that reason alone they should reject anyone they have not advised on; if they don’t assert their authority it will continue to be denied them.
One of George Bush’s remarkable successes has been conditioning almost everyone to expect extreme right wing ideologues or their enablers in just about every position of importance. It’s now common even on the left to read a sentiment along these lines: He’s the President and he gets to pick whomever he wants; it likely will be someone far outside the mainstream but as long as s/he’s not entirely objectionable we should be grateful. That was the initial reaction with Mukasey. Unfortunately it glossed over some extremely serious objections that are only now starting to dribble out. The worst is his belief he could determine whether or not a defendant had been tortured by looking at him in court. If nothing else it brings up echoes of the Doctor By Video routine from Bill Frist (and is presumably as reliable). At worst it conjures up images of someone who can be casually dismissive of human rights.
There are other problems as well. For one “Mukasey said that he saw ‘significant problems’ with shutting down Guantánamo Bay and that he understood the need for the CIA to use some ‘enhanced’ interrogation techniques against Qaeda suspects”. This is a polite way of saying he is ambivalent about habeas corpus but approves of torture. He has also prevented evidence of intelligence agencies’ being compromised come to light at a trial he presided over. This was not just a sucker punch to transparency – a little bit of scandal in 1995 may have prevented a whole lot of terrorism in 2001. Mukasey represents a “consensus choice” in a post-advice world. Finally there’s the issue of Senator Leahy’s largely forgotten pledge to sit on the nomination until the administration stops placing itself above the law. Not following through on pledges like that are why the White House has paid no price for its uninterrupted contempt of Congress.
The Senate should reject Mukasey for three reasons, any one of which is sufficient. They have not advised the President on this nominee, the nominee has an unacceptable record in defending the Constitution, and there is an existing legal tangle to unwind at the Justice Department that should take precedence. They would perform a valuable service to their country by rejecting him.
For more on pruning back executive power see The Pruning Shears.
