Michael Mukasey sailed through the first day of Senate hearings on his nomination for attorney general, as Democrats pushed the former district court judge to ensure his tenure would not mirror the rocky leadership of his predecessor, Alberto Gonzales.
A calm and soft-spoken Mukasey assured Democrats that he would try to improve the Justice Department’s icy relationship with Congress and not let political considerations interfere with federal investigations. And in a clear break with Gonzales, Mukasey repudiated a 2002 Bush administration memo on torture, calling the document “worse than a sin.”
“We don’t torture,” Mukasey said. “It is not what this country is about. It is not what this country stands for. It’s antithetical to everything this country stands for.”
During his 2005 confirmation hearings, Gonzales did not disavow the memo’s legal conclusions, which were issued by then-Assistant Attorney General Jay Bybee. The memo, which the White House has since withdrawn, allowed the president to issue orders in violation of international and domestic laws prohibiting torture.
In stark contrast to Gonzales’ highly contentious appearances before the Senate Judiciary Committee, Democrats on the panel expressed confidence Wednesday that the nominee would be an independent enforcer of the law, signaling that his confirmation by the full Senate was on track. A committee vote on the nomination could happen as early as next week after the panel concludes another round of hearings with outside witnesses.
“He’s having a good time, Mr. Chairman — or at least not a bad time,” Sen. Charles Schumer (D-N.Y.) said of Mukasey’s appearance. Schumer, one of the most outspoken critics of Gonzales, said Mukasey possessed the “vital attitudes” to restore the “credibility, competence and independence” of the department.
Unlike Gonzales, Mukasey assured the panel that contacts between the White House and Justice Department over bringing cases would be limited, and said he would consider resigning if the president went against his expert legal advice.
“I will reject any argument that I feel is without foundation,” said Mukasey, who served over 18 years on the U.S. District Court for the Southern District of New York.
Mukasey also did not rule out referring contempt citations against current or former White House officials to a federal grand jury, and he laid out the guidelines he would take into consideration.
“Your predecessor made the decision without even looking at those principles, and said that the U.S. attorney wouldn’t be allowed to go forward,” said panel Chairman Patrick Leahy (D-Vt.).
Since Mukasey was nominated to the post in September, Democrats have praised Bush’s choice. But they at first stated that any nomination hearing depended on reaching accord with the White House over accessing documents related to the administration’s torture policies, the U.S. attorney firings, and the National Security Agency’s warrantless wiretapping program.
The White House has largely not complied with that initial request, leaving Democrats in a quandary of deciding whether to block a qualified nominee who might fix the problems at the Justice Department.
“They’re torn, I think,” said Carl Tobias, law professor at the University of Richmond. “They argued that the department is in disarray and want someone in there, so it’s hard to make his confirmation contingent on that because then they will look obstructionist.”
Instead, Democrats have chosen a different tack: move forward with the nomination, hoping that Mukasey will help broker the repeated clashes between Congress and the White House.
On Wednesday, Mukasey told the panel he would work with lawmakers, signaling warmer relations with Congress if he is confirmed to the post. “I believe that the department’s relationship with this committee and with Congress is vital to fulfilling its mission,” Mukasey said.
For their part, Democrats sought to draw out distinctions between Mukasey and Gonzales.
Under Gonzales, the committee found evidence that the White House was pushing the Justice Department to pursue cases that could have an impact against their political opponents. Leahy said Gonzales had disavowed the Justice Department’s “red book,” a guideline that guarded against bringing prosecutions on the eve of an election that could affect its outcome.
Mukasey said the red book would be re-employed. “Partisan politics plays no part in either the bringing of charges or the timing of charges,” Mukasey said.
Not all his answers pleased the senators, however. Mukasey said he would have to get “up to speed” on the inner workings of the secret wiretapping program that has come under fire on Capitol Hill before commenting on it.
“I can’t possibly be familiar with that program,” Mukasey said.
Mukasey would also not say whether he would recommend closing the Guantanamo Bay detention facility.
Sen. Arlen Specter of Pennsylvania, the committee’s ranking Republican and a staunch critic of Gonzales, tried to pin Mukasey down on whether he believed the constitutional right to habeas corpus is narrower than the statutory right. But Mukasey did not answer the question, saying the matter would be decided in a Supreme Court case on detainee rights.
“My own view is that he’s a very smart, and even a street-smart person,” said Sen. Dianne Feinstein (D-Calif.). “He has different views than some, but that’s to be anticipated.” |
