Senate Judiciary Committee Chairman Sen. Patrick Leahy, D-Vt., right, meets with Attorney General-designate Michael Mukasey, left, on Capitol Hill

Justice for all

Politics | Bush's attorney general nominee has inspired unusual bipartisan cheering-and consequent bipartisan suspicion

Issue: "Survivors," Sept. 29, 2007

Attorney general nominee Michael Mukasey boasts the kind of Democratic endorsements that might disqualify him in some conservative circles. Sen. Charles Schumer (D-N.Y.), a fierce critic of the Bush administration and departing attorney general Alberto Gonzales, has all but endorsed Mukasey's confirmation. Sen. Patrick Leahy (D-Vt.) has likewise voiced support, calling the nomination "a chance for a fresh start."

But such potential demerits cannot undermine the longtime federal judge's conservative credentials. Mukasey has a consistent track record as a principled and deliberate jurist who is tough on terrorists. House Minority Whip Roy Blunt (R-Mo.) has urged the Senate to speedily confirm a nominee he says "will help strengthen the department-putting our nation in a better position to defend against attack, and ensuring the impartial administration of justice for every citizen in this country."

With such ringing endorsements from both sides of the aisle, Mukasey appears a lock for confirmation. But not everyone is thrilled with that prospect.

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No sooner had preliminary reports surfaced of Mukasey's nomination than Brian Burch, president of the pro-life Catholic group Fidelis, began fielding calls from concerned members of his organization. Their worry stemmed from a 1994 case in which Mukasey, then presiding over the federal court of New York's Southern District, ruled that a Chinese immigrant's fear of his country's barbaric forced abortion laws did not constitute a legal justification for political asylum in the United States.

Jia-Ging Dong was among 286 Chinese refugees whose tramp steamer, the Golden Venture, ran aground on Rockaway Beach in Queens, N.Y., in June 1993. The Justice Department initiated deportation proceedings against Dong, who responded with a heart-felt application for asylum. Dong reported that before boarding the ship to America, he had placed his pregnant wife in hiding to prevent the state-mandated killing of his unborn child. The Chinese government's family-planning officials had ordered Dong and his wife to stop bearing children after their first two, an edict the couple ignored.

Dong feared harsh punishment for that crime upon his return to China. But Mukasey denied the asylum application on the grounds that the conception and rearing of children did not qualify as protected political activity under U.S. asylum laws. Congress later amended the offending statute in 1996.

Some social conservatives, like Burch, suggest that such a ruling represents hostility toward the pro-life cause. But others, including the editorial board of The New York Sun, contend that the incident demonstrates Mukasey's "commitment to follow the law despite the raw emotions of a case."

Both Democrats and Republicans remain uneasy over how that commitment to law will play out in more pressing matters, such as the ongoing congressional investigation into the Justice Department's firing of nine U.S. attorneys and the forthcoming congressional investigation into the Bush administration's warrantless wiretapping program.

Past associates of Mukasey describe the journalist-turned-lawyer as an independent thinker unlikely to fall in lockstep with Bush administration positions. Baruch Weiss, a former federal prosecutor in New York who appeared before Mukasey, told The Washington Post that the attorney general nominee is not "someone who would simply be doing the president's bidding."

Nevertheless, Mukasey shares much of President Bush's philosophy on prosecuting terrorists. In 2002, he ruled that federal authorities could detain suspected terrorist Jose Padilla indefinitely without filing charges for a crime-though he also granted Padilla legal counsel against the wishes of prosecutors.

In past op-ed articles for The Wall Street Journal, Mukasey has staunchly defended the Patriot Act and recently advocated trying terrorists in special, tougher courts outside the criminal justice system-positions that endear him to conservative terror hawks.

Mukasey also maintains a close friendship with former New York City mayor and front-running GOP presidential candidate Rudy Giuliani, having first met the Republican politician when they served as fellow federal prosecutors in Manhattan during the early 1970s. Following his retirement from the federal bench last year, Mukasey joined Giuliani's presidential campaign as a legal advisor.

Those positions and connections are enough to give some Senate Democrats pause. The confirmation process could slow if Democrats insist on the release of sensitive White House documents pertaining to last year's U.S. attorney firings before moving forward.

But in an apparent effort to preclude such stalls, Bush provided Democratic leaders an incentive to expedite Mukasey's confirmation when he suddenly altered his choice for interim attorney general from Solicitor General Paul Clement to Peter Keisler, a high-ranking Justice Department lawyer with an irksome resumé for Democrats. Keisler is a resolute defender of practices at the U.S. military prison in Guantanamo Bay, Cuba, and is a co-founder of the Federalist Society, a conservative legal group despised in liberal circles.


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