JURIST Guest Columnist William G. Ross of Cumberland School of Law, Samford University says despite US attorney general nominee Michael Mukasey's success in winning approval in the Senate Judiciary Committee, the full Senate should take all the time it needs to consider his nomination even though the next attorney general is unlikely to serve past the end of Bush’s term in little more than a year…

The controversial nomination of Michael B. Mukasey to serve as attorney general has highlighted the Senate’s important role in the confirmation of cabinet officials, particularly the attorney general. In its intense scrutiny of Mukasey’s nomination, the Senate Judiciary Committee has properly exercised a constitutional duty that the Senate frequently has discharged in hearings on attorney general nominations but all too often has abnegated in its rush to confirm the nominations of other cabinet officials. The full Senate should subject the Mukasey nomination to the same careful scrutiny.

A nomination that was expected to sail through the Senate has floundered over worries that Mukasey is too amenable to questionable tactics that the Bush Administration has used in fighting terrorism. Mukasey’s refusal to unequivocally declare that so-called “waterboarding” of terrorist suspects constitutes illegal torture and his statements about the president’s power to authorize warrantless wiretapping have generated particular concern and were major factors in the decisions of eight of the committee’s nineteen members to oppose the nomination Tuesday. These senators may fear that Mukasey’s opinions on these issues raise broader questions about Mukasey’s willingness to oppose what many senators regard as growing abuses of presidential power.

Critics of the Mukasey hearings, including President Bush, have faulted the Senate for its protracted deliberations. Senator Orrin G. Hatch complained last week, for example, about a “crazy, topsy turvy confirmation process” that had consigned Mukasey to “forty days in the partisan wilderness.”

The Senate should take all the time it needs to consider this nomination, however, even though the next attorney general is unlikely to serve past the end of Bush’s term in little more than a year. Any attorney general is too important to receive cursory review during the confirmation process and the next attorney general should receive particularly intense scrutiny. In addition to grappling with constitutionally sensitive issues involving the exercise of executive power during wartime, the new attorney general must restore confidence to the Justice Department in the wake of allegations that U.S. Attorneys have been fired for partisan reasons.

While there is general agreement that the Senate normally should accord some deference to the President’s choice — as Alexander Hamilton observed in The Federalist, one president can select an executive officer more expeditiously than can one hundred senators — members of the Senate often have emphasized that they are significant partners in the selection process. Although a cabinet member is an executive official in whom the President must have trust because the official works closely with the President to execute presidential programs, the Senate must ensure that the cabinet official also will protect the nation’s best interests.

Numerous senators, commentators, public interest groups and scholars have correctly argued that the Senate has a responsibility to subject attorney general nominations to especially close scrutiny. As Senator Charles Percy explained during the controversy over President Carter’s nomination of Griffin Bell in 1977, “the Attorney General requires more stringent standards than any other Cabinet post.” Similarly, the president of Common Cause aptly remarked during the protracted hearings on Edwin Meese in 1984 that “the appointment of an Attorney General is too important to grant confirmation out of superficial examination of party regularity or upon the ground that the President is entitled to his choice.”

The starting point for senatorial scrutiny, professional competence, has been no problem in the Mukasey deliberations because the nominee, a former federal judge, has sterling credentials. The Senate also has a duty to make certain that the nominee is morally and ethically fit to serve as the nation’s chief law enforcement officer. Concern about ethics have arisen in connection with the nominations of many attorneys general, particularly Meese in 1984, Richard Kleindienst in 1972, and Charles Warren, whom the Senate twice rejected, in 1925. In contrast, Mukasey’s personal integrity appears to be beyond reproach.

Since the attorney general is the official most responsible for the enforcement of civil rights laws, many senators and commentators have correctly argued that it is also essential that an attorney general take seriously her role as a guardian of the rights of the poor and the dispossessed, racial and political minorities, and other persons who need the special protection of the laws because they may lack effective means of influencing the executive and legislative processes. Nothing in Mukasey’s background or his testimony appears have created concern about his commitment to racial and gender equality or his concern for the problems of the poor.

In considering an attorney general nomination, the Senate also should consider whether the nominee is sufficiently independent from the president, and this is the issue that has haunted the Mukasey hearings. Scrutiny of a potential attorney general’s independence is critically important because it is imperative that the nation’s chief executive law enforcement officer should stand above the partisan politics of the administration in which she serves and administer justice fairly, even-handedly, and in a manner that will assure the nation and the world that the United States remains dedicated to the rule of law.

As Senator Benjamin L. Cardin told Mukasey during the Judiciary Committee hearings last month, “as Attorney General of the United States you are the people’s lawyer, not the lawyer for the President or a political official in the White House.” Similarly, Senator Patrick J. Leahy aptly reminded Mukasey that “there is good reason why the rule of law requires that we have an Attorney General and not merely a Secretary of the Department of Justice. This is a different kind of Cabinet position, distinct from all the others, and it requires greater independence.”

Moreover, the professional independence of an attorney general is particularly important because the Justice Department is more closely connected than are other executive departments with both the legislative and judicial branches of government. By profoundly influencing the process by which federal statutes are enforced, the Justice Department necessarily interacts closely with Congress. As Senator Leahy stated during the Meese hearings, “although the Supreme Court has the last word on what our laws mean, the Attorney General often has the first word, and the first word, so many times, determines the last word…The success of so much of the work of Congress always depends on who is sitting at the head of the Justice Department.”

In considering whether a nominee is sufficiently independent from the president, senators may properly consider whether the nominee’s ideological views are compatible with those of individual senators. As Professor Calvin MacKenzie has pointed out, the confirmation process “affords the Senate an opportunity to carry on…its persistent struggle with the executive branch to shape th
e contours of public policy.”

Although the President has a mandate from the electorate to shape public policy through his cabinet officers, senators likewise have a mandate from their constituents to ensure that cabinet members do not frustrate the policy preferences of the voters who elected the senators or thwart the legislation that Congress has enacted. As Dr. Louis Fisher has explained, “Department heads and their assistants are not merely staff support for the President. They are called upon to administer programs that Congress has enacted into law. A lack of interest by an administrator or overt hostility to a legislative program can eviscerate the policies that Congress has taken pains to announce as national goals.”

Although many critics of Mukasey fear that he would lack the independence needed in an attorney general, particularly in an administration that demands such stringent loyalty in its officials, Mukasey, unlike all too many previous attorneys general, does not have close personal ties to the president; during the twentieth century, attorneys general included three presidential campaign managers, a president’s personal attorney, numerous presidential political advisors, and even a president’s brother. Perhaps the failure of Bush’s nomination of his personal aide Harriet Miers to the U.S. Supreme Court two years ago taught Bush the hazards of trying to elevate cronies to the very highest echelons of government, although neither of Bush’s first two attorneys general were personal or political associates, either.

To the extent, however, that Mukasey’s testimony indicates a tendency to broadly construe questionable executive powers, many senators understandably are concerned about his ideological independence from the president and his willingness to distance himself even from from presidential policies with which he may disagree.

The accretions of presidential powers over war and national security issues during the past six years naturally trouble many Americans, including Republicans and Democrats, liberals and conservatives. Substantial numbers of Americans understandably fear that Congress has acquiesced too easily in the growth and exercise of these powers, and it is therefore natural that senators will take a long, hard, close look at an attorney general nominee who seems to support — or even expresses willingness to consider supporting — some of these presidential powers, policies, and practices. Even if senators believe that Mukasey is otherwise well qualified to serve as attorney general, these concerns alone are enough to justify the rejection of his nomination.

The Senate is free to refuse to confirm a nomination for any reason. As Mukasey acknowledged during his testimony before the Senate Judiciary Committee last month, “you have the exclusive authority to vote me up or vote me down for any reason or no reason.”

Ultimately, senators must ask themselves whether they trust Mukasey to stand against any abuse of presidential power. As Senator Birch Bayh, Sr. aptly stated during the hearings on Bell three decades ago, “I do not know of any litmus test on which we can guarantee what kind of Attorney General…we get. We look at the facts. In the final analysis, it’s the cut of the human being. It is the individual. It is the character of the person involved.” Mukasey’s reputation for high professional standards, fairness, and personal probity appear already to have helped win votes among judiciary committee members who had doubts about his views on presidential power, and such trust may ensure his confirmation.

Although the Senate’s probe of Mukasey’s views on executive war powers have received widespread media coverage, Senate Judiciary Committee members also propounded oral and written questions to Mukasey on scores of other topics. These, too, are important and Mukasey’s informed and thoughtful responses to these questions appear to have enhanced his support, even among senators who have qualms about his views on executive power. These questions and answers are particularly important because they have provided an opportunity for a rare dialogue between the legislative and executive branches on issues that also are closely connected with the judicial branch of government. Among other subjects, Senate Judiciary Committee members queried Mukasey about:

• prosecution of laws against racial discrimination, including employment discrimination;
• antitrust enforcement, including monopolistic practices in agriculture and statutory immunity from antitrust laws;
• enforcement of laws against illegal immigration;
• protection of the rights of Native Americans, including coordination of law enforcement on tribal lands;
• gun control, including the assault weapons ban and whether the Second Amendment applies to the states;
• crime prevention, including federal financial assistance to state and local enforcement agencies;
• use of foreign law and custom to help resolve American legal issues;
• juvenile justice, including the transfer of youth to adult facilities and the treatment of mentally ill juveniles;
• prison reform, including the prevention of sexual abuse of prisoners;
• possession and sale of illicit drugs, including the disparity in penalties for possession of crack cocaine and powder cocaine;
• expansion of protected groups in pending federal hate crimes legislation;
• discrimination against gays in the Justice Department;
• scope and enforcement of the Americans with Disabilities Act, including the definition of “disability” within the meaning of the Act and the Act’s applicability to wounded military veterans;
• scope and enforcement of anti-obscenity laws;
• prevention of human trafficking.

Whatever the outcome of the Senate’s final vote on Mukasey, the Senate’s robust consideration of Mukasey’s nomination will help to ensure that the next attorney general enforces the nation’s laws in a manner that is broadly consistent with the will of the voters who elect senators to offer advice in connection with Cabinet nominations and to offer — or withhold — consent.

William G. Ross is a professor of law at Samford University's Cumberland School of Law, where he teaches and writes about constitutional history, constitutional law, and professional responsibility. His website is williamgeorgeross.com.
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