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Elliot Richardson and Michael Mukasey/Old Business and New Business

AG nominee Michael Mukasey enjoys an excellent reputation as a tough, fair federal judge who has not always rubber stamped everything Bushco wants to do simply because they bandy about the word “terra” and tell him to be afraid, very very afraid. I mentioned him as a possible nominee a couple weeks ago.

He’s a Southern District guy and, as Mary Joe White likes to point out, SDNY folk take an almost perverse pleasure in proving how independent they are from the folks inside the beltway. Jim Comey and Pat Fitz both started out in SDNY and they have have their stark moments of independence from the WH.

So, maybe Judge Mukasey is the best we progressives can hope for at this juncture? Maybe.

However, that does not mean that the Senate Judiciary Committee should just drop everything else they are doing and confirm him with no strings attached!!!

Yesterday, I was driving to a meeting and heard Jonathan Turley on “All things Considered.” He made an excellent point: Before the Senate Judiciary Committee takes up any new business, such as the confirmation of AG nominees, they should tidy up the desks with respect to the old business, like all those outstanding subpoenas.

Here’s the scoop, the SJC IS still waiting for subpoena compliance in the form of both testimony and documents. I don’t see where they will have the time, or clear space on the desk, to handle anything new until they finish up this subpoena compliance project.

Nope. There is only so much staff time and desk space to go around and it’s all occupied with this terrible backlog of unanswered subpoenas. Tsk, tsk, tsk.

Look, Mukasey brings an excellent resume to his confirmation hearings. So did Elliot Richardson. Yet the Senate Judiciary Committee extracted the exact terms, in writing IIRC, of the appointment of an Independent Counsel to investigate Watergate before they would send his nomination to the floor.

I’m not suggesting anything that ambitious. Just finish all old business, to Pat Leahy’s complete personal satisfaction, before undertaking any new business. Can you guys and gals on SJC handle that ?

An aside to judge Mukasey (in case you googlealert yourself and this turns up in your email).

When you go the DC, and especially when you go to the White House, please bring with you your New York skepticism and your knowledge of how to avoid being taken in by the 3 card Monte players and fake designer watch salesmen on 6th Avenue (Note to non New Yorkers: only rubes call it Avenue of the Americas).

Please read this excerpt from a speech Jim Comey gave at the NSA and picture the scene he describes. You will be in that same room one day and will face the same choices. Learn from his experiences:

At the outset, we know that we are a nation of laws, not men.  We have chosen a profession that internalizes that truth. We know that the rule of law sets this nation apart and is its foundation.

We also know that we took an oath to support the constitution of the United States. We know that there may be agonizing collisions between our duty to protect and our duty to that constitution and the rule of law.

When we encounter those moments of collision, I hope we are aided by a uniquely lawyerly ability: the ability to transport ourselves to another time and place; and the ability to present facts to an imaginary future fact-finder, in an environment very different from the one in which we face current crisis and decision. We know that the setting will not be a late-night command center, thick with the tension of threat and danger.

We know that our actions, and those of the agencies we support, will be held up in a quiet, dignified, well-lit room, where they can be viewed with the perfect, and brutally unfair, vision of hindsight. We know they will be reviewed in hearing rooms or courtrooms where it is impossible to capture even a piece of the urgency and exigency felt during a crisis.

We also know – at the risk of sounding parochial – that once we give our legal blessing, the individual policymakers, the operators – good people though they may be – won’t be there. In fact, if the stuff has really hit the fan, we know what will be said: “We never told the lawyer what to say.” And: “We simply asked him/her what was permissible.”

But we also know that we won’t be alone in that imaginary calm, well-lit room – blazingly lit by hindsight. With us will be the reputation of our great institutions, the institutions we love because they do so much good over so many years. We know that damage to the reputation of that institution will cause harm for years to come, as our institution recovers from scandal or allegations of abuse of authority.

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In rugby, the looseheadprop is the player in the front row of the scrum, who has the ability to collapse the scrum, pretty much at will and without the referee knowing who did it.
While this can give the LHP's team a great tactical advantage, it also exposes scrum players from both teams to the dangers of catastrophic spinal cord injury.
Consequently, playing this position makes you understand your responsibility to put doing the right thing ahead of winning, and to think beyond your own wants and desires. It also makes you very law and order oriented.