No Teddy Bears Need Apply

So, I was starting to write about Ted Olson as the AG nominee ("This Ted's No Teddy Bear"), when I started to see another name bandied about -- former District Circuit Judge (SDNY) Mike Mukasey. See e.g., Mukasey Cited as Leading Candidate for Attorney General.

So, is it more playing with us, so Bush gets the advantage of a big surprise? Or is it putting forward the worst possible name as a teaser (Ted Olson), so that the final pick doesn't seem so bad by comparison? Some people think Bush still wants a fight, Can This Man be the Leading Candidate?, which would support the Olson pick, but others say Mukasey's the man. Mukasey for Attorney General?.

Makasey has one advantage. He's not Ted Olson.

Right. At least he's not the darling of the right. Glenn Greenwald, who has a detailed overview of Mukasey at his Salon blog, notes:

There is no question that Judge Mukasey, a Reagan appointee who served as the Chief Judge for the Southern District of New York before retiring recently, is close to the far right on the judicial spectrum. He undoubtedly holds many legal and political views which most Democrats would find objectionable, perhaps even intolerable. But that will be true of any nominee Bush selects, and it is true of the current Acting Attorney General, Paul Clement, who will remain in place if no nominee is confirmed.

Talk Left adds, after reading up on him, the pros and cons at Michael Mukasey May Be Named AG Monday:

Preliminary assessment: He's independent-minded, extremely experienced and smart, and while more conservative on terror-related issues than I'd like, far too supportive of the Patriot Act and too close to Rudy Giuliani for comfort, he doesn't run rough-shod over defendants' rights. As compared to Ted Olson, Mukasey is an improvement.

A round up of opinion is also at The Moderate Voice, Federal Judge Mukasey Bush’s Leading Attorney General Choice.

Greenwald provides his usual informative overview of his role in the Padilla case, including several instances that he ruled against Bush, noting that at least he showed some independence from the Administration's position. Further, as Greenwald notes, "he did so at a time when most people, including those who were natural political opponents of the President, were petrified of doing the same." He concludes:

But it is true is that Mukasey's history -- unlike that of, say, Ted Olson -- has been that of an independent-minded (albeit quite conservative) judge, not a political hack at the center of partisan wars. He has -- at least at times -- displayed an impressive allegiance to the rule of law and constitutional principles over fealty to claims of unlimited presidential power.

Mukasey is very smart and independent, not part of the Bush political circle, and -- at least compared to the array of nightmarish alternatives -- it is hard to see him becoming a subservient tool of the White House. Far and away, independence from the White House is the attribute most needed for the next Attorney General -- someone who will enforce the rule of law even when it undermines the political interests, or even the legal interests, of top Bush officials.

None of this is to say that Mukasey should be confirmed as Attorney General if, as appears to be the case, he is the nominee. There is a long record of rulings that very well may constitute potent grounds for opposing him. He published a recent Op-Ed in the Wall St. Journal on the question of legal rights for terrorist suspects which was reasonable on some points though ultimately inconclusive on the central questions. And, as indicated, his ruling that Bush has the power to detain Americans as "enemy combtatants" is unquestionably disturbing. All of that may provide ample ground for opposition.

In the end, he's not Olson. As the Next Hurrah noted about Ted, in Ted Olson as AG = no Congressional subpoena power:

As we're all aware, both the House and Senate Judiciary Committees are still awaiting "administration" compliance with numerous subpoenas and other demands for documents and testimony. But standing in the way is White House counsel Fred Fielding, who insists that the officials and former officials subpoenaed by the committees are shielded from having to testify, under claims of executive privilege.

The House Judiciary Committee, having found no basis for such a claim, recommended in late July that the full House adopt resolutions finding former White House counsel Harriet Miers and White House Chief of Staff Joshua Bolten in contempt of Congress.

By law, however, once adopted by the House, such charges are referred for prosecution to the U.S. Attorney for the District of Columbia. Yes, the prosecution would fall to the same U.S. Attorneys whose politicization by the White House sparked this controversy in the first place. And the "administration" has been clear: they will not permit such a prosecution to go forward.

Unprecedented? Unfortunately not.

The exact same scenario played itself out in the early 1980s, when EPA Administrator Anne Gorsuch refused to provide documents subpoenaed by the House, invoked executive privilege at the direction of the White House counsel, was held in contempt, and the U.S. Attorney not only refused to prosecute, but in fact sued the House of Representatives.

Who was the White House counsel who devised the plan? Fred Fielding. Yes, the same.

Fielding's assistant in running the gambit? Well, he's now Chief Justice of the United States, John Roberts. Yes, the same.

Again, the aim of the plan? To neuter the ability of Congress to enforce its oversight powers against the executive branch.

And who established this plan as administration policy by authoring a 1984 memo as head of the Office of Legal Counsel? Ted Olson. Yes, the same.

Oh, and there's one other bright light aspect to this appointment -- it's only for the remainder of Bush's term -- unlike Judges, who we're stuck with for life.

UPDATE (9/17): Looks like Mukasey's the one. Ex-Judge Is Said to Be Pick At Justice. So I guess the goal was to hint at a selection that would be totally unacceptable for the Democrats so that they'd be happy with the very conservative pick put forward.

In fact, Jeralyn Merritt of TalkLeft wonders why NY Sen. Schumer, who was supportive of Mukasey is now questioning his selection, Sources: Mukasey to Accept AG Position. I'm sure that's just him making noises to make the conservative feel a little better (one of the objections to Mukasey on the right was that the left didn't hate him vehemently enough), so that he will in fact be confirmed without much agita.

Tags: Attorneygate, Michael Mukasey, Law, Politics, News