We waited all day for this question: “Judge Mukasey, there’s every reason to believe the last attorney general and the president have violated federal laws, precipitating a crisis of confidence in the Constitution of the United States and the rule of law itself. What are you going to do about that?”
Turned out the fix was in. The senators of the judiciary committee had met with the worthy judge in private and had all their fondest hopes fulfilled and all their worst fears dispelled. He must have assured them he would be a modest caretaker for the remainder of the Bush term. On the record, he was cautioned in the most respectful terms to be independent and not to repeat the missteps of his predecessor. There was a lot of hoping among Democrats on the committee. Mukasey promised nothing in the way of justice.
Patrick Leahy recited with due gravity a litany of criminal offenses committed by employees of the justice department and higher levels of the executive branch, urging the nominee and all of us to “acknowledge wrongdoing.” Leahy made generous reference to various hearings on Iraq, U.S. Attorneys, Blackwater, and other instances of executive malfeasance, but it was a modest call for reform and Leahy demanded no accounting. The ranking member Arlen Spector expressed mild dissatisfaction over abuses of executive authority that the senator considers “necessary because we are at war.”
These men should not need to be reminded that when government attorneys misbehave, that’s a crime. The attorney general and his employees hold the scales of justice in hand. When they are corrupted, a crime is committed against the USA.
You would think, at a time when justice department employees and other executive officials have committed notorious abuses of authority that amount to racketeering, that a hearing on the confirmation of an attorney general would make reference to the enforcement of the criminal laws the leaders violated. You would be wrong. Commandeering the Department of Justice for political ends is a crime, and Leahy accused somebody of doing it, but he didn’t call for a criminal accounting. Is it now not politically correct to prosecute high-ranking officials or even mention their criminal culpability, or “wrongdoing,” as Leahy would toothlessly have it?
Introducing the nominee, Senator Lieberman offered a fond reminiscence of his and Mukasey’s days together at Yale Law School, and Senator Schumer, who talked to some mutual friends from the ruling class, was confident of the nominee’s probity and suitability. I can almost hear the buzz in the Oval Office after somebody said, “Let’s get a Jew! With a Jew you get Spector, Schumer, Lieberman, like half the Democrats on the committee.” Make it a New York right-winger. Win-win, as they say.
The members of the committee took up most of their time on this first day of questioning to air select grievances against the Justice Department or get commitments of support for favored programs. They didn’t put many substantive questions to the nominee. Typically, the senator says what he expects of an attorney general and expresses a hope that Mukasey will live up to expecations. The nominee counters with what he hopes he can, indeed, do. His were not the answers of a lawyer. Law is. The role of the attorney general is to bring the rule of law to the executive, restraining it whenever necessary. We don’t hope we can do it. We do it.
To the rare substantive questions that were put to the nominee, the answers he gave were the answers you would expect from a mob lawyer. He never made a pronouncement of loyalty to the rule of law that didn’t have an escape clause. “To the extent possible” and “as far as I am able” are lethal qualifiers in the parlance of organized crime, which this is. Mukasey’s tone and pace were trance-inducers, and the content of his answers was pure pablum. Nobody in America, not any senator and not any citizen, heard the latter part of any of his answers.
Senator Herb Kohl, Democrat, asked Mukasey directly whether the US government should close the prison at Guantanamo. He seemed content with the response that the attorney general will get the best advice available and act on that. Kohl allowed Mukasey to bloviate on what the feds can do to stem gang violence and on the advantages of having more cops on the street, especially under programs that benefit Kohl’s loyal patrons. Kohl and the other senators were deferential at a time when deference is altogether inappropriate.
Accountability, in the committee’s view, will take the form of “restructuring” and “assembling a top-flight staff.” The new regime will emphasize merit hiring, and they will no longer be taking calls from politicians. Never mind that the calls already received from politicians were felonies, and the new attorney general would be the guy charged with the prosecution of people like Rove and Domenici, to name just two callers. The senators couldn’t even name two. Among the bunch of them, they couldn’t think of two public officials who committed crimes and aren’t being prosecuted for them, or even one. I can name 50.
“They’re new! They’re novel!” That was Lindsay Graham’s triumphal declaration in reference to legal theories rationalizing imprisonment without trial and torture as a means of interrogation. Truer words were never spoken. Lawyers used to employ precedent, but torture and denial of legal process are without precedent, and the legal theories advanced to promote these practices are new, novel, and phony. As Lindsay Graham knows. He’s a lawyer and he knows he’s not allowed to endorse legal tripe of this sort, and so he challenged the nominee. He wanted to know whether it wasn’t better, on balance, to afford prisoners the benefits of notice and an opportunity to be heard. Graham thought he could get Mukasey to assent to this modest commitment to fundamental human rights.
Forget about it. Mukasey vowed to respect fundamental human rights but only if it doesn’t impede the gathering of intelligence. In response to Graham’s question, the nominee acknowledged being “uncomfortable” with what used to be called water torture. He didn’t give a suitable answer to any of Graham’s questions. Graham’s conclusion: “I have every confidence you will do a good job.” Senator Graham could have asked whether the government lawyers who advanced legal theories rationalizing torture and imprisonment without trial should be disbarred, but he didn’t. None of the senators did.
As nearly as I could discern, the proceedings were to an empty chamber, at least on the committee’s side of the table. C-SPAN tried not to let on, but every so often that naughty cameraman, the one that picks out the best-looking people in every room and puts them on just for art’s sake, that guy shot the empty row of seats. It was Leahy along with whoever was at bat and whoever was on deck.
Evident from the nominee’s evasions was a guarantee that he will be able to lend his imprimatur to just about any executive usurpation. Like most of the villains who would be a party to such corruption, he’s a vainglorious twit who has been seduced to a position of power beyond his mother’s wildest dreams. This is not his fault. This is our fault. We allow totalitarians like this nominee and the senators who pet him to prosper.
This confirmation process looks like a sham, a deal that was concluded in private. The guy’s a totalitarian, and the senators know it. They are going to give him the job not in spite of his fascist tendencies but because of them. They have his pledge to preserve the imperial courts for the Democrats, if they can win them. The “unitary executive,” which has no existence in traditional legal doctrine, is the main point of agreement between Democrats and Republicans, and this attorney general, who hopes to uphold the Constitution and may choose to heed the rule of law if it doesn’t get in the way of intelligence gathering, is just the man to make it happen.