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With Justice Pick, Bush Hopes to Avoid a Fight

By Michael Abramowitz and Dan Eggen
Washington Post Staff Writers
Tuesday, September 18, 2007

President Bush opted to try to avoid a confirmation fight by nominating Michael B. Mukasey to be attorney general, concluding that the retired federal judge shares his approach to national security issues, but without the appearance of partisanship, administration officials and others close to the White House said yesterday.

Bush gave serious consideration to former solicitor general Theodore B. Olson, but the president's top advisers thought Olson would face too many obstacles in the Senate, according to those familiar with Mukasey's selection. White House officials denied that Bush was cowed by Senate Democrats opposed to Olson, a respected lawyer and active participant in a number of past conservative battles, but acknowledged that "confirmability" was a factor that the president considered.

"What you want is somebody who is superbly qualified and quickly confirmable -- Mukasey hit both of those elements," said a senior White House official, who like others spoke on the condition of anonymity because of a policy that only the president should comment publicly on the nomination.

Senate Majority Leader Harry M. Reid (D-Nev.) signaled that Mukasey's confirmation is not likely to be a problem. Twenty minutes after Bush announced the nomination, Reid issued a statement praising Mukasey for his "strong professional credentials and a reputation for independence."

But other senior Democrats said they will seek to link Mukasey's confirmation with investigations they have launched into his predecessor, Alberto R. Gonzales. Sen. Patrick J. Leahy (Vt.), chairman of the Judiciary Committee, suggested that to ensure a speedy process, the White House should give the panel access to long-sought witnesses and documents related to some of the controversies that engulfed the Justice Department during Gonzales's tenure, including the firings of nine U.S. attorneys and warrantless wiretapping.

"Our focus now will be on securing the relevant information we need so we can proceed to schedule fair and thorough hearings," Leahy said. "Cooperation from the White House will be essential in determining that schedule."

White House officials said they will not give in to such pressure, and they pressed the Senate to approve Mukasey by Oct. 8. "No" was the answer one senior adviser gave when asked whether the White House is willing to tie the nomination to the production of such documents.

Sen. Arlen Specter (Pa.), the Judiciary Committee's ranking Republican, warned Democrats against such a strategy. "In making this selection, I think President Bush has made a very . . . deliberate effort to choose someone who would not be controversial," he said. "It is my hope that we will not get bogged down in preconditions on his nomination."

Besides the prosecutor firings and allegations that Gonzales lied to Congress and attempted to improperly influence the testimony of a witness, the Justice Department has been rocked by the departure of almost every senior official. The department's inspector general and Office of Professional Responsibility are conducting a wide-ranging internal probe.

In sharp contrast to Bush's close relationship with Gonzales, a friend and aide from his days as Texas governor, the president had not met Mukasey until he interviewed him Sept. 1. He formally presented Mukasey, 66, as his nominee in the Rose Garden yesterday after offering him the job on Friday.

Mukasey, a lawyer in private practice who served for 19 years on the federal bench in New York, spent part of the weekend meeting with leading figures in the conservative legal world, seeking to allay their concerns about his philosophy and suitability for running a Justice Department that has been in turmoil under Gonzales.

In explaining the selection, Bush and his senior advisers emphasized Mukasey's long experience in national security issues, including handling such high-profile terrorism cases as the trial of Omar Abdel Rahman, the "blind sheik," and others involved in plotting to blow up New York City landmarks. One top presidential adviser said the focus of the last 16 months of the administration will be ensuring that Bush and his successor have the necessary tools to fight terrorists.

"Judge Mukasey is clear-eyed about the threat our nation faces," Bush said yesterday. ". . . He knows what it takes to fight this war effectively, and he knows how to do it in a manner that is consistent with our laws and our Constitution."

In his own remarks, Mukasey also emphasized the role of the department in the administration's "war on terror," drawing a contrast with the department's agenda when he was a young prosecutor more than three decades ago. "The challenges the department faces are vastly different," Mukasey said. ". . . Thirty-five years ago, our foreign adversaries saw widespread devastation as a deterrent; today, our fanatical enemies see it as a divine fulfillment."

The process that led to Mukasey's selection was headed by White House Chief of Staff Joshua B. Bolten and counsel Fred F. Fielding, who reached out to lawmakers on both sides of the aisle as well outside experts to draw up a list of candidates for Bush.

Several sources said Bush was keenly interested in Larry Thompson, who was deputy attorney general in his first term, but Thompson made it clear early on that he did not want to be considered. So did federal appellate judge Laurence H. Silberman -- a favorite of Vice President Cheney, the sources said.

By several informed accounts, the finalists for the job were Mukasey, Olson and George Terwilliger, another former deputy attorney general. White House officials said Mukasey's name had been suggested by several lawmakers, including Sen. Charles E. Schumer (D-N.Y.), as well as by lawyers inside and outside the White House. They said former New York mayor Rudolph W. Giuliani (R), a close friend and associate of Mukasey's, had nothing to do with the selection.

Over the three-week period from Gonzales's resignation to Mukasey's nomination, the White House engaged in an unprecedented level of consultation with key Democrats such as Schumer, Democrats said.

"At least some in the White House had a different attitude," Schumer said. He said he spoke with Fielding at least four times about the pending nomination.

Schumer said he suggested four people to Fielding: Mukasey, Thompson, former senator John Danforth (R-Mo.) and Securities and Exchange Commission Chairman Christopher Cox.

Mukasey came to Washington on Aug. 29 for an interview with Bolten, Fielding and other staff members. He sat down with the president a day before Bush left for a trip to Iraq and Australia. "It was a very good and detailed conversation from which the president was able to take a good measure of the man," one senior official said.

Reid and other Democrats vowed last week to block Olson if he were nominated, in part because of his alleged ties to an investigation of Bill and Hillary Clinton in the 1990s by a conservative magazine, the American Spectator. Specter said the White House had little choice but to abandon Olson in the face of that opposition, which he likened to "blinking red lights on a train crossing."

Some conservatives said Bush caved to Reid -- choosing "surrender," in the words of conservative activist Richard Viguerie -- though some close to the White House said they believe Bush was leaning toward Mukasey at that point anyway.

"They have decided to follow in the model of Dick Thornburgh following Ed Meese, finding a good, strong, well-regarded lawyer who can get bipartisan support rather than having one more flash point with the United States Senate," said Kenneth M. Duberstein, who was chief of staff to President Ronald Reagan. "They chose pragmatic conservatism over pure orthodoxy."

Anticipating disappointment, the White House arranged for Mukasey to meet with conservatives over the weekend. They declined to identify who they were, though former attorney general Edwin Meese III confirmed that he met with Mukasey in the past week and said he came away impressed.

In an interview yesterday, Olson said, "This is a terrific selection by the president," adding: "I think he'll bring exactly what is needed to the Department of Justice."

Former Bush White House lawyer Bradford A. Berenson said conservatives are "cautiously optimistic" about Mukasey, though they worry that two decades on the bench and a lack of executive branch service "may well leave him ill equipped" for the Washington wars.

Staff writer Shailagh Murray and washingtonpost.com staff writer Paul Kane contributed to this report.

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