President Selects Attorney General Nominee

Paul Rothstein
Law Professor, Georgetown University
Monday, September 17, 2007; 3:30 PM

Georgetown University law professor Paul Rothstein was online Monday, Sept. 17 at 3:30 p.m. ET to discuss the presidents selection of Michael Mukasey to replace Alberto Gonzales atop the Justice Department.

Bush Selects Ex-Judge as Attorney General Nominee (Post, Sept. 17)

The transcript follows.


Paul Rothstein: Hello, readers. Good to be with you.


Boston: Is it possible or advisable for a Senate committee charged with confirming a particular administration nominee to know as much about that nominee's views as was disclosed to the administration as part of the selection process? For example, if Cheney/Addington asked Mukasey for his view on a particular unitary executive issue during the pre-nomination vetting process, should there be some disclosure process by which the Senate committee understands as much about Mukasey's views as Bush/Cheney/Addington?

Paul Rothstein: I agree as a general principle. The present administration (indeed many administrations) would claim it is an executively privileged decision You can try using the Freedom of Information Act. Sometimes litigation will be required.


Washington: The White House has stated that if Congress seeks contempt of Congress charges for any matter on which the president has claimed executive privilege, the president will order U.S. Attorneys to do nothing about it. Why shouldn't Senate Democrats use the attorney general confirmation hearings as an opportunity to resolve this matter by refusing to confirm the attorney general nominee unless he explicitly repudiates this policy and promises in advance to resign if the president seeks to implement it over the AG's objection?

Paul Rothstein: This is perfectly within the power of the Democrats to do. If you want them to do so, you should tell them.


Santa Barbara, Calif.: Professor Rothstein: Thank you for hosting the chat today. I have a question not directly related to the ongoing attorney general nomination. In other countries where the tradition of democracy is strong (Western Europe, Japan, etc.), how are their equivalents of our AG selected? Are they political appointees subjective to legislative approval, or is the selection/election method somewhat different?

Paul Rothstein: Thanks for your question. In some of the countries, it is just appointed, without legislative approval.


Pittsburgh: Any chance this guy would continue as the Attorney General in the Clinton administration?

Paul Rothstein: Maybe for a brief period only, until she could nominate her own. He would be too conservative for a long-term appointment.


Boston: Call me cynical but what is the most that the Bush administration could get done through the new acting attorney general between now and when the new attorney general is confirmed and sworn in? How can Congress keep track of the acting attorney general's actions during this time?

Paul Rothstein: Theoretically he could continue to politicize the Justice Department, but it is unlikely considering the kind of man he is. Congress also is watching like a hawk, although it is very hard to find out stuff on the operational level.


From the Right: It's pretty apparent now that George Bush doesn't care about conservative support. He's given up on us, much as we're disappointed in him.

Paul Rothstein: Mukasey isn't exactly liberal, but not totally extreme conservative. Everything in government (almost) hinges on some compromise.


Django48: Patriot Act or not, Mukasey is the best you're going to get out of this administration. The more important question now is whether the Justice Department will come clean on the U.S. Attorney firings, the N.H. phone jamming, the Siegelman prosecution, the midnight visit to Ashcroft's bedside, etc. If he does his job, we may yet be treated to the sight of Karl Rove in leg irons.

Paul Rothstein: I doubt any of this will happen.


West Bend, N.C.: I saw the announcement on C-SPAN. The new attorney general reminds me of Paul O'Neill with a law degree. What about his "stage presence"?

Paul Rothstein: Not great, but not too bad.


Westwood, Mass.: If FBI Director Mueller's notes are correct and Attorney General Ashcroft was not allowed to seek relevant constitutional/national security legal counsel for questions he had about the NSA wiretapping program, how unusual is it for a sitting attorney general to be prevented from this type of counsel for a program he was required by law to certify because of administration-defined secrecy issues (which apparently no one can challenge)? It also was reported that Sen. Rockefeller on the Senate Intel committee was also not allowed to seek other legal counsel on the program, and even that the NSA's internal lawyers were not allowed to see the legal-basis documents for a program that directly involved the NSA --how unusual would that be?

Paul Rothstein: Seems very unusual, although it has happened in times of war or national emergency.


Pittsburgh: What are the most significant issues that you anticipate the new attorney general being involved in, and what do you expect his positions to be?

Paul Rothstein: There is not much time left for him, but terrorism and related issues will be at the top of the list. I take it that has something to do with his selection, as he has taken views the administration likes on terrorism-related issues as a prosecutor and judge.


mhr614: If it is a fact that the nominee for Attorney General is a law and order man, you can be certain that many liberals will oppose him on those grounds alone. Liberals prefer ACLU types.

Paul Rothstein: The liberals seem to realize he is the best they are going to get.


CardFan: Bush actually nominates someone that is not a crony and may indeed be qualified! That thud you heard was me fainting and hitting the floor. I must say, however, that I'm a bit concerned about the emphasis terrorism is getting in the Department of Justice. Yes, it's a real danger, but did we suddenly get rid of all of our thieves, mass murderers, rapists, pedophiles, violent racists and scam artists? I thought the whole idea of treating terrorism as a law enforcement issue was a Republican criticism of Democrats!

Paul Rothstein: Point well taken.


Washington:"It's pretty apparent now that George Bush doesn't care about conservative support." He never cared for the middle, liberal or left, so who does he care about? How will supporters and detractors portray Mukasey? What will be the images that each side will want us to have of Mukasey?

Paul Rothstein: Bush seems to have ideas of his own about how the world should be. Each side will emphasize different portions of Mukasey's case record -- particularly his terrorism rulings. They are not entirely hard-right -- there is something in there for both sides (mostly pro-administration, though not entirely). The supporters also will emphasize that he is a good judge with a judicial temperament, admired by a number of people from both sides.


Tampa, Fla.: I don't know how relevant this is, but I thought I'd send in this recent press release from Mukasey's old firm. To the extent DOJ gets involved in the subprime mortgage mess, it might be relevant. Firm Forms Subprime Mortgage Practice Team (Patterson Belknap Webb & Tyler LLP, July 31)

Paul Rothstein: Thank you -- I will take a look at it. Sounds interesting.


Bangor, Maine: Can the Democrats make holding confirmation hearings conditional on the administration complying with the outstanding subpoenas that have been issued against it?

Paul Rothstein: Yes, but that is not politically feasible.


Albany, N.Y.: Interesting that Bush put in a new acting attorney general in place of Clement, pending Mukasey's confirmation -- one apparently less favorable to the Dems. While perhaps entirely unprincipled, it's really a shrewd maneuver, don't you think?

Paul Rothstein: I thought Clement was very good. Maybe he didn't want to become a political football, as he has a very good reputation.


Paul Rothstein: Thanks for all the questions. In signing off, I would like to compare what Bush has tried to do by nominating Mukasey with what Gerald Ford did to try to restore public confidence in the Justice Department after Watergate. Ford appointed well-respected University of Chicago Law School Dean, Ed Levi, to be Attorney General. He was moderately conservative, but both sides liked him. He was good, and it worked. Bye all.


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