October 17, 2007
Liveblogging The Michael Mukasey Confirmation Hearing: Part I
[Liveblogging The Michael Mukasey Confirmation Hearing: Part II]
12:20. Recess. So far, no big surprises, but plenty to reassure those who anguish over DOJ's loss of credibility under Gonzales. We'll resume with testimony from the witness panel -- fomer AG Dick Thornburgh among them -- later this afternoon in a new post.
12:11. "More recently, a statute called the USA Patriot Act has become the focus of a good deal of hysteria, some of it reflexive, much of it recreational," Mukasey wrote in an op-ed published in the Wall Street Journal in 2004.
Russ Feingold somewhat ridiculously asks if Mukasey believes that all critics of the Patriot Act engage in "recreational hysteria." He doesn't, of course, and acknowledges parts of it can be improved. Like most non-partisans on the act, Mukasey sees good and bad there. The point of the op-ed is best summarized in the second half of its title: "Before attacking the Patriot Act, try reading it."
12:02. "I'm going to assure you there isn't going to be any stonewalling," Mukasey says when Charles Grassley asks about the load of documents and testimony his panel has been denied by the administration. "I'm certainly going to review the clearance process simply to make sure that it is a clearance process and not just a black hole."
11:47. California Democrat Dianne Feinstein: Are you a sexist? Not really based on anything in Mukasey's past; she just seems to want assurances of where the nominee is on civil rights. Mukasey delivers an interesting anecdote about how he came to quit a club that admitted only men.
Of the Civil Rights division, "that department occupies a very special place," Mukasey says. "Civil rights in general have been one of the finest expressions of genius imaginable" in the history of American law.
11:30. What do you have against Paul Clement? asks Orrin Hatch with something of a twinkle in his eye. The Utah Republican is referring to convicted terror plotter Jose Padilla, whose habeas corpus case was brought before Judge Mukasey. Mukasey didn't seem to be a fan of Solicitor General Paul Clement's arguments for the denial of access to counsel for enemy combatants (that classification was eventually dropped by the administration).
Most lawyers get their back up about access-of-counsel issues; Mukasey's irritation with the argument is not surprising. It wasn't anything personal, the judge insists. "I only raise it because it was a lot of fun for me to raise," Hatch says with a chuckle. Not surprising to see a softball here.
11:22. Reason for loyal anti-Bushies to hope: Mukasey says he agrees with FBI Director's Robert Mueller's assessment than an emphasis on meat-and-potatoes law-enforcement matters ought to be restored in the DOJ, after Carl Levin brings up this morning's Washington Post report on the department.
"The terrorism effort in the Justice Department undertaken by people within the criminal division and put into anti-terrorism efforts... there may have been efforts like anti-gang programs that may have suffered as a result," Mukasey says. "We can't turn our society into a society that's not worth preserving."
Mueller has pushed back against the White House on the touchier subjects we're hearing about today, and he's still on the job. Some may have doubted whether a new AG will make any difference to this White House. Mukasey's confirmation could be read as an acknowledgement the administration is willing to compromise.
11:15. Mukasey promises the issue of Guantanamo will be right up there with filling DOJ vacancies on his priorities list, though he won't say what exactly he would prescribe for the 300 or so detainees still housed there. A possible sign we'll see the facility shuttered as promised before Bush's term is up.
11:10. Hey now, our first Answer The Damn Question moment, courtesy of the senator from Pennsylvania. Specter wants to know where Mukasey is on the contentious issue of habeas corpus for terrorism detainees, which the Supreme Court is set to weigh in on this term in the face of rejections by Senate Republicans and the White House.
Mukasey declines to answer, citing the pending SCOTUS case. That's not an unusual non-position for a nominee to stake out. Specter doesn't care.
"That question and related questions are squarely before the court," Mukasey says, explaining why he can't give an answer.
"Judge, you're punting now," says Specter.
"I'm going to do what I had to do as a kid, which is to watch my mouth about this," Mukasey returns.
"I filed a brief" on this case, Specter responds. Mukasey can't really answer this question, no matter what Specter says, on the chance that it turns out he and the court conflict on the matter. His job is to accede to the court's interpretation, of course, but it just makes life harder for him if the world knows he's carrying out policy he opposes.
10:55. "Torture is antithetical" to the American justice system. Mukasey's preaching to the choir here. The Bush administration would agree, but as we now know the issue here is its refusal to explicitly lay out its definition of torture.
Lest anyone out there is detecting the start of a beautiful friendship here, think again. Mukasey and Leahy aren't about to become BFFs, because the presumed AG's job description will also include defending the White House from an overreaching Congress, as well as vice-versa. Mukasey points out where this comes into play when the topic moves to FISA, the limits of which do "not reach to the limits of presidential authority." He clarifies, citing precedent set by former AG Griffin Bell: "There is some gap between where FISA left off and where the Constitution permitted the president to act." George W. Bush did not invent executive authority, which some of his staunchest critics seem to forget.
The temptation among those whose distrust of President Bush knows no bounds is to roll back his power as far as they possibly can. In this regard, Mukasey will be expected to act as referee. It should be an improvement over Gonzales, in any case.
10:38. Mukasey hits all the right themes in his opening statement. "This is about the more than 100,000 men and women at the Department of Justice." "Legal decisions and the progress of cases are decided by the facts and the law, not by interests and motives." His job as AG would be to advise "presidents on what choices they are free to make and what limits they face."
Mukasey is performing not just for the committee, but for a Justice Department that has seen its reputation impugned. By reputation, DOJ attorneys are known for their brilliance and self-assurance bordering on cockiness. These past few months by all accounts have been difficult for many in the department.
"Protecting civil liberties and people's confidence that those liberties are protected is a part of national security just as gathering national intelligence from those who believe it is their duty to make war on us," Mukasey says. His job as AG will be to "try to help" DOJ attorneys do their job to protect the people. And to the lawmakers, he says, "The relationship with Congress is vital... I will always appreciate and welcome your advice. I and others in the department will try to be available to you."
10:30. The ever-verbose Charles Schumer has finally wrapped up after some prodding from Leahy. The New York senator is a longtime backer of the retired Southern District of New York judge for elevated posts, having once pushed him for the nation's highest court. Schumer feels confident that Mukasey would "have the courage to look squarely into the eyes of the president of the United States and tell him no if that is [his] best legal and ethical judgment." Most if not all of his colleagues on the panel feel similarly assured. But for many it isn't enough to do the AG job as they envision it should be done. They want a winding back of the clock and clean-up of the mess they perceive Gonzales left when he stepped down.
10:13. "We have seen a terrorist surveillance program put into effect without telling the chairman or ranking member of the Judiciary Committee."
Specter highlights one potential tripping point for Mukasey. He and Leahy accuse the White House of keeping them in the dark about some of its more covert counterterrorism measures, and are pretty obviously sick of it. Mukasey will be pressed to promise full disclosure on these matters -- something any nominee would have trouble doing simply because deal-making during the confirmation process is perceived as unwise and unseemly.
But there'd be nothing wrong with Mukasey vowing to restore Congress' oversight role in these matters. That's not the same as a promise of complete sunlight, but it will be used as leverage by lawmakers in the future.
10:12. Ranking Republican Arlen Specter: The importance of this hearing "approximates a Supreme Court confirmation hearing."
10:08. Ladies and gentleman, the ghost of Gonzo. Leahy makes the first mention of the morning of former Attorney General Alberto Gonzales, the man who has brought us all here. This may remind some of you of Robert Gates' confirmation hearings, as he was also nominated to replace an administration figure whose unpopularity transcended partisanship. But Mukasey's hearing won't be as simple as, "Are you or have you ever been Alberto Gonzales?" The issues at stake, mentioned below, are deeply woven into the principles of liberty and security that guide this nation. The Judiciary Committee realizes this better than most: The precedents set by this administration over the last seven years may already be changing the most deeply held principles of this nation at the core.
9:59. Welcome to The Gate's liveblog coverage of attorney general nominee Michael Mukasey's Senate confirmation hearing. Let's dispense with any pretense of suspension about whether he makes it through -- we're all certain he will, barring an unforeseen wide-stance caliber catastrophe. Mukasey is a well-respected, independent-minded judge, and the Senate Judiciary Committee is keen to install him expeditiously to right a wobbly and dispirited Justice Department. Why are we watching this? Torture, wiretapping, signing statements, executive power.
These are the buzzwords to look out for today. Senators will be grilling him on all these points, because while no one is worried about how Mukasey will fare in the confirmation process, they are deeply concerned about how he will resist what we now know is a highly aggressive White House. Chairman Patrick Leahy is delivering opening statements now; watch with us on C-SPAN3.
Posted at 12:22 PM
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Alberto Gonzales, Attorney Scandal, Bush Administration, Congress, Michael Mukasey, President Bush, Senate
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