AT his confirmation hearings last week, Michael B. Mukasey, President Bush’s nominee for attorney general, was asked whether the president is required to obey federal statutes. Judge Mukasey replied, “That would have to depend on whether what goes outside the statute nonetheless lies within the authority of the president to defend the country.”
I practiced before Judge Mukasey when I was an assistant United States attorney, and I saw his fairness, conscientiousness and legal acumen. But before voting to confirm him as the nation’s chief law enforcement officer, the Senate should demand that he retract this statement. It is a dangerous confusion and distortion of the single most fundamental principle of the Constitution – that everyone, including the president, is subject to the rule of law.
In not being direct and forthright on this and other issues, Mukasey has disqualified himself. He’s plainly unacceptable; we have no reason to think he’ll be any different from Gonzales on these fronts; and we can’t claim ignorance. We know what he’ll do.
To a larger point … With all due respect to my co-proprietors, whenever I hear legal folks talk about how X judge (Scalia, e.g.) has terrific “legal acumen”, or “really understands the law”, or is a “brilliant legal mind”, it really looks like club members giving each other the secret handshake. All of these things are critical, of course; and law requires utter integrity — and even brilliance of insight — in its processes. Fine and well.
But we’re all human beings, and we know that certain of these human beings in the law are going to come to different substantive conclusions from other human beings in the law. Some judges side with corporations, some with individual plaintiffs. Some have very restrictive views of civil rights; some have sweeping definitions of executive power. And these things matter — they can’t be papered over by testimonies to someone’s personal qualities or the standards of their work. People of integrity come to different conclusions, and so you’ve just got to consider the pattern of legal results from a nominee.