Mr. Mukasey's Answers

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Thursday, October 18, 2007

THE CONFIRMATION hearings for attorney general nominee Michael B. Mukasey began yesterday with the sober pronouncement by Judiciary Committee Chairman Sen. Patrick J. Leahy (D-Vt.) that, if confirmed, Mr. Mukasey would inherit a Justice Department facing its gravest challenge since the "Saturday Night Massacre" of Watergate infamy. Then it quickly turned into a ceremonial waltz, with members of both parties swooning as Mr. Mukasey delivered informed, concise and responsive answers. The senators' reaction was understandable, given the conspicuous difference between Mr. Mukasey's testimony and the chronic evasions of Alberto R. Gonzales. But senators shouldn't be surprised if, as attorney general, Mr. Mukasey adopts many of the same positions as his predecessor -- albeit with more reasoned and legally sound justifications.

Mr. Mukasey's stated respect for the rule of law came across as a refreshing departure from the Bush administration's record. His familiarity with Supreme Court decisions on the rights of enemy combatants suggested a recognition that the rulings should be respected. His acknowledgment of the need for and desirability of consultation and col laboration between the executive and legislative branches sounded almost radical given the administration's past practice. When asked if he believes Congress has the right to ban torture, he replied, "Yes, I do and it has." He gave exactly the right answer when asked what role politics should play in law enforcement decisions: "Partisan politics plays no part in either the bringing of charges or the timing of charges."

The bar for Mr. Mukasey's success was set low on this first day of hearings. Few senators attempted to get beneath the surface of the judge's compelling but often incomplete answers. It's worth noting that administration officials -- from the president on down -- have given similar answers before in public, while privately contradicting them. Mr. Mukasey's unblemished reputation as a judge and his courageous decision to demand that U.S. citizen and alleged "dirty bomb" plotter Jose Padilla be given a lawyer are reasons to believe that his public declarations will prove meaningful.

Still, Mr. Mukasey will undoubtedly take conservative legal positions that will as often as not support the president's agenda. At least twice, Mr. Mukasey invoked the Supreme Court case of Hamdi v. Rumsfeld to remind senators of the president's right to detain indefinitely an enemy combatant captured on the battlefield. While seemingly sincere in embracing intrabranch cooperation ("Unilateralism across the board is a bad idea."), Mr. Mukasey also said that there were powers that the president is authorized to exercise without prior approval from Congress. (He wasn't asked what those powers were.) In an exchange with Sen. Russell Feingold (D-Wis.), Mr. Mukasey argued that because of "very scant" case law, the executive may have tremendous flexibility in gathering intelligence, with far fewer restrictions than in a criminal investigation.

Mr. Mukasey is clearly well qualified and displays a breadth of knowledge and a deep-seated sense of integrity that can only be a benefit to the beleaguered Justice Department and the nation. The Senate should confirm him promptly -- and with eyes wide open.


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