The Mukasey Primary
What do generals do if the war is called off? The four Democratic presidential candidates who serve in the Senate had been getting ready to battle confirmation of Theodore B. Olson as attorney general, a welcome opportunity to pump up the liberal base and score some easy points against a wounded Republican president. Only President Bush pulled a fast one by passing over Olson and nominating a well-respected former federal judge.
Now the situation is a bit more complicated for Sens. Hillary Rodham Clinton (N.Y.), Barack Obama (Ill.), Joseph R. Biden Jr. (Del.) and Christopher J. Dodd (Conn.). The natural instinct for all four candidates seeking Democratic primary votes would be to oppose anyone Bush selects to head a Justice Department wracked by the politically charged tenure of departed Attorney General Alberto R. Gonzales. But can they realistically stand against a nominee who boasts the backing of Clinton's New York colleague, Sen. Charles E. Schumer?
All four candidate-senators played it cautiously yesterday, waiting to see which way the political winds blow. While Schumer and even Senate Majority Leader Harry M. Reid (D-Nev.) praised Bush for nominating Michael B. Mukasey, the would-be presidents were generally more restrained, making sure not to tip their hands.
"Our next attorney general must respect the Constitution and the rule of law," said Clinton, "and it is my hope that during his confirmation hearings, Judge Mukasey demonstrates that he will continue his years of able public service to restore these principles to the Department of Justice."
The others sounded similarly noncommittal themes. "By all accounts, Judge Mukasey has had a distinguished legal career and he appears to have the qualifications to be attorney general," Obama said. "However, we need more than qualifications and technical competence. We need someone who understands that the attorney general is the top law enforcement official protecting the rights of all Americans."
Dodd stressed that it is important to "thoroughly examine his record in order to ensure that he demonstrates capability and willingness to restore credibility and independence to the Department of Justice." Biden pronounced himself "pleased that President Bush put aside his old habits and picked an outside professional" but agreed that the confirmation hearings should be "thorough and deliberative" to be sure Mukasey understands "he is the people's lawyer, not the president's lawyer."
Olson almost certainly would not have elicited such equivocal statements. After all, Clinton, Biden and Dodd are already on record opposing his presence in the top echelons of government, having voted against Olson's confirmation as solicitor general in 2001, a vote he cleared just 51 to 47 in a Republican-led Senate. (Obama had not been elected to the Senate yet). And Olson, of course, has been a conservative foe of the Clintons since the 1990s.
Mukasey is an unknown to the four candidates, just as he is to most others in Washington. Even Clinton, after representing New York nearly seven years, does not know Mukasey, who served as chief judge of the U.S. District Court for the Southern District of New York until last year. Spokesman Philippe Reines said the senator has not had any dealings with Mukasey, although he could not rule out that they may have met at some point.
What the Senate Four do know is that Schumer earlier this year explicitly recommended Mukasey to Bush as a replacement for Gonzales, certainly suggesting an easy confirmation barring unexpected discovery. So if the Senate is going to confirm him anyway, what is the calculation for the candidates? Do they vote against him anyway just because any Bush choice will likely be unpopular with the base? Or do they keep in mind that they would not want their nominees rejected strictly on ideological grounds if they were president?
The four senators have voted to approve most of the Bush cabinet, after all, including some staunch conservatives. But Clinton and Biden voted against both of Bush's previous attorneys general, Gonzales and John D. Ashcroft. Obama and Dodd also voted against Gonzales; Dodd voted for Ashcroft in 2001 and Obama was not yet in the Senate then.
The Mukasey hearings may yet hold some surprises. Mukasey is bound to be grilled about his views on sensitive national security issues, such as warrantless surveillance and detention of enemy combatants without hearings. As a judge, Mukasey has ruled on some of these issues, approving for instance, the use of the material witness statute to detain people without charges after Sept. 11, 2001, on suspicion of terrorist ties. And he has defended the USA Patriot Act, which is viewed skeptically by many liberals.
Unlike a Supreme Court nominee, he will not be able to dodge questions by saying he may have to rule on them. Of course, as a cabinet appointee for a presidency with barely a year left, his confirmation does not hold the same stakes as a life-time court appointment.
And yet, since he has been serving as a campaign adviser to Rudolph W. Giuliani, he could be viewed as the first cabinet selection of the next Republican president, should the former New York mayor win. None of the four would like that idea.
-- Peter Baker
September 18, 2007; 9:00 AM ET
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