Wrong man for the job

Hosannas have been hailing down on Judge Michael Mukasey from both sides of the aisle. No doubt, he will be confirmed as attorney general by a substantial majority. No doubt, he is a fine lawyer, exemplary judge, and an independent and upstanding person. But he is not the right man for the job.

A strong candidate for attorney general would have the management background to run a large organization plus experience in the Justice Department. Mukasey has little of either.

Democrats like Mukasey because he was picked by a weakened president with few options. They summon the ghost of Edward Levi at every opportunity. Levi was President Ford’s choice for attorney general in the wake of Watergate. With the firings and resignations of special prosecutors and attorneys general under Nixon, Levi was brought in as an independent choice to restore the reputation of the Justice Department. He had previously worked for Democratic presidents, but was seen as a nonpartisan figure in a troubled time. Given the severity of the crisis of confidence at the time, he was the right man for the job. But the Levi model envisions an attorney general who is a direct check on the president.

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A degree of independence is to be welcomed, especially in the wake of the disastrous tenure of Alberto Gonzales, but Democrats anticipate a neutered attorney general or one who is at odds with the president he serves.

President Bush chose Mukasey for a different reason. Mukasey’s role as a judge in several high-profile terrorism cases in New York convinced the Bush administration that he “gets” the terrorism threat and understands strong executive-branch measures are needed to combat it. With that minimum requirement met, Mukasey appeals to Bush because he is eminently confirmable, especially as he has the backing of a prominent Democratic senator, Charles Schumer (N.Y.).

But these Republican and Democratic reasons for supporting Mukasey obscure some of the larger qualifications of the job. Alberto Gonzales fell short in many ways. His independence was suspect because his entire public career was in service to George Bush. He had not run a large organization. He had not served in a Justice Department of another president.

Mukasey is an independent figure from outside the Bush circle. But he does not bring to the job the demonstrated ability to forcefully lead a large department. Nor does he know the ins and outs of the department.

As a judge, Mukasey’s management experience was limited. Mukasey himself described his management role as chief district judge as a “sandbox” compared to running the Justice Department.

Mukasey also has almost no experience at Justice. He was employed by the department as an assistant U.S. attorney in New York under Rudy Giuliani many years ago, and as a judge he has observed its workings, but he has not served the department in Washington, or at a high level elsewhere. There is a tremendous advantage to “knowing the building,” both in being able to push the department to get things done, and in knowing when to stand up for the long-established department norms.

Homeland Security Secretary Michael Chertoff or former Solicitor General Ted Olson have management and Justice experience, but would have been too hard to confirm. Former Attorneys General Richard Thornburgh or Bill Barr would have been able to step in and provide immediate leadership. Former high-level Justice Department officials such as Larry Thompson or George Terwilliger would have also fit the bill.

With Mukasey, all of the signs point to an honorable tenure that does no harm, not one of strong leadership.

Fortier is a research fellow at the American Enterprise Institute.