A lot of you have asked what I think of the Mukasey nomination. I’m in the middle of day job stuff at the moment, so let me point you to what Glenn and looseheadprop have to say on Mukasey (which is really more valuable than what I could say anyway, since they’re the ones with JD after their name–LHPJD; it’s like a secret code! Also see litigatormom’s comment–she’s got the JD built right into her name!).

For what it’s worth, Mukasey seems like someone who believes in the rule of law, but is not someone who will go to great lengths to fix existing problems. He’s also not someone with the bureaucratic experience to whip DOJ back into shape. So in some sense, Mukasey would prevent any further damage, but would not make great progress on reversing the damage Alberto Gonzales did.

As to what the nomination means, I’ve got more questions than answers:

  • Did Democrats in the Senate make a deal–to drop the Congressional investigation into DOJ matters in exchange for a relatively non-controversial nominee? Of special note, Mukasey is basically Schumer’s pick for the nomination, and Schumer’s the one you’d have to buy off to make such a deal.
  • If so, are the Democrats expected to be able to ask for some kind of guarantee on the integrity of the investigations conducted by DOJ, such as those being conducted by the Inspector General, or perhaps even a Special Counsel investigation of the issues?
  • Would such discussions effectively give Mukasey a Harriet Miers problem, where the wingnuts in the Republican party campaign to get a real hack appointed (the underlying risk here, btw, is that Orrin Hatch is a likely fallback candidate in such a scenario, and the Senate has a nasty habit of supporting its own against their better judgment).

One indicator of some answers to that question comes in Reid’s statement (by email):

I’m glad President Bush listened to Congress and put asidehis plan to replace Alberto Gonzales with another partisan Administrationinsider.  Judge Mukasey has strong professional credentials and areputation for independence.  A man who spent 18 years on the federalbench surely understands the importance of checks and balances and knows how tosay no to the President when he oversteps the Constitution.

But there should be no rush to judgment.  The SenateJudiciary Committee must carefully examine Judge Mukasey’s views on thecomplex legal challenges facing the nation.  I look forward to meetingJudge Mukasey, and I will work with Chairman Leahy to ensure a full airing ofthe issues presented by his nomination.

Shorter Harry: We know the bench is as concerned about the shredding of the Constitution as Congress is. However, we reserve the right to ask for more, in approving this nominee, than just someone who believes in the rule of law.

In other words, I think Reid, at least, will attempt to get more out of this approval process than just Mukasey. It’s key to have Reid’s leadership on this, because Schumer’s undoubted support in SJC almost guarantees this nomination will easily make it to the Senate floor.

Let’s see whether Reid manages to deliver on his words.



Marcy Wheeler aka Emptywheel is an American journalist whose reporting specializes in security and civil liberties.