Why we shouldn't b**ch if the Democrats confirm Mukasey

So it seems pretty clear Bush is going to nominate former federal court Judge Michael Mukasey to be the next Attorney General. At least according to CBS and CNN. (And this diary right here.)

I was wondering what to think about the nomination. Should the democrats permit this to go forward, or would it be better to simply let the interim AG to remain?

Glenn Greenwald answered the question for me.

First, it should be noted that Mukasey is no liberal. Here's how Greenwald puts it:

There is no question that Judge Mukasey, a Reagan appointee who served as the Chief Judge for the Southern District of New York before retiring recently, is close to the far right on the judicial spectrum. He undoubtedly holds many legal and political views which most Democrats would find objectionable, perhaps even intolerable.

Of course, one question is whether preventing this nomination from moving forward would be better than confirming Mukasey. At least preliminarily (before we discover more about him during confirmation hearings), the answer to that question appears to be'no.' As Glenn states, not only will any nominee Bush selects will be close to the far right on the judicial spectrum, but also, "it is true of the current Acting Attorney General, Paul Clement, who will remain in place if no nominee is confirmed."

So the next question is whether there is anything redeeming about Mukasey. The answer, surprisingly, is yes. His record in standing up to the Bush administration as a federal court judge is pretty darn good. Glenn details how Mukasey showed impressive independence when he presided over the Jose Padilla case:

I want to highlight one extremely relevant consideration concerning Judge Mukasey -- the impressive role he played in presiding over the Jose Padilla case in its earliest stages. After Padilla was first detained in April 2002 and declared an "enemy combatant," he was held incommunicado, denied all access to the outside the world, including counsel, and the Bush administration refused to charge him with any crimes. A lawsuit was filed on Padilla's behalf by a New York criminal defense lawyer, Donna Newman, demanding that Padilla be accorded the right to petition for habeas corpus and that, first, he be allowed access to a lawyer. That lawsuit was assigned to Judge Mukasey, which almost certainly made the Bush DOJ happy.

But any such happiness proved to be unwarranted. Judge Mukasey repeatedly defied the demands of the Bush administration, ruled against them, excoriated them on multiple occasions for failing to comply with his legally issued orders, and ruled that Padilla was entitled to contest the factual claims of the government and to have access to lawyers. He issued these rulings in 2002 and 2003, when virtually nobody was defying the Bush administration on anything, let alone on assertions of executive power to combat the Terrorists. And he made these rulings in the face of what was became the standard Bush claim that unless there was complete acquiescence to all claimed powers by the President, a Terrorist attack would occur and the blood would be on the hands of those who impeded the President.

Greenwald summarizes the importance of Mukasey's multiple anti-Bush administration rulings in that case as follows:

Mukasey thus rejected the notion that Padilla's detention could be justified based on the unchecked, unchallengeable, secret assertions of the President.

Mukasey's actions were notable because they came at a time when there were virtually no other limits being placed on the President's power. Stalwart rule of law defender Bruce Fein, in a December 2002 Op-Ed in The Washington Times, called Mukasey's decision a "narrow, prudent, and impeccable decision" and said it "sets a standard to which the wise and honest jurist should repair."

Judge Mukasey's respect for the Constitution and the rule of law should not be overstated. As part of his ruling that Padilla was entitled to counsel and to contest the factual accusations against him, Mukasey also ruled, very dubiously, that President Bush had the authority to detain American citizens, even those detained on U.S. soil, as "enemy combatants," and that they need not be charged with any crimes. He thus rejected Padilla's claim that, as a U.S. citizen, the Constitution barred his incarceration without criminal charges being brought and a conviction obtained in a court of law.

Please go read the whole thing. There is much of Greenwald's post that I have left out, including an update wherein it appears Jeralyn Merritt of TalkLeft concurrs with Greenwald.