October 19, 2007


Matt Yglesias writes today that Michael Mukasey initially seemed "an admirably non-terrible choice for the job of attorney general" but "the hearings process has revealed him to be completely unacceptable." This makes my head hurt. Sure, Mukasey is not a hack like Alberto Gonzales -- he's a serious man who's had a serious career in the law. (So, by the way, are John Roberts and Samuel Alito.) I expect that the DoJ will be better run, I don't expect Mukasey to continue the rampantly politicized hiring practices that existed under Gonzales (although how far he'll go to clean out the ranks of political hires who are still there is another question entirely.)

But... we've known for several years now that practically every decision the Bush administration makes is shaped by a view of presidential authority on steroids. The Mukasey nomination never seemed like a compromise to me, but just a rerun of the same brilliant tactic the administration used with its judicial nominations. When the administration nominated Roberts in particular, but also Alito, many in the legal establishment seemed almost flattered by their impeccable credentials and courtly manners. Unlike, say, a Harriet Miers, these guys seemed respectable, part of the club, and so many in the world of elite opinion murmured their gratified approval; the Senate got a lot of non-answers from both men, but because they were given politely, it confirmed them all the same. As Charlie Savage explains in his indispensable book, though, Roberts and Alito happened to share the administration's vision of executive power (as their records inside the Reagan administration clearly demonstrated). That is why they were nominated.

Over the last week or so, we've seen Washington making a very similar mistake. Even Andrew Sullivan, normally outstanding on the issues of torture and abuse of executive power, initially took the bait, although he has since changed his mind. In the Senate, Patrick Leahy has realized that there is "a loophole big enough to drive a truck through” in Mukasey's position on whether the president needs to obey the law. Mukasey has also refused to call waterboarding torture -- despite the fact that the U.S. has, historically, successfully prosecuted the practice as a war crime under international law. But so far the Senate appears set to confirm Mukasey, because he is at least answering their questions, even though the answers he is giving are unacceptable.

Here is the issue: despite the Bush administration's declining fortunes, its attitude towards the power of the presidency remains unchanged. It is detaining people on the basis of secret evidence and then claiming that it has lost the evidence. It is successfully strong-arming a weak-willed Congress into legalizing its illegal wiretapping. Despite the disclosure of its torture policy, that policy remains unchanged. Given the centrality of the DoJ to the administration's exercise of unfettered power, was there ever any doubt that Bush and Cheney would nominate someone for Attorney General who didn't share their basic beliefs about presidential authority? Sure, they might have preferred Ted Olson. But there's no way they would have nominated Mukasey if they thought he would jeopardize their seven-year mission to remake the presidency. And that's why he shouldn't be confirmed, no matter how serious and independent and impressive he seems in contrast to Alberto Gonzales.