The Questions Senators Should Ask Themselves About Attorney General Nominee Michael Mukasey

By CARL TOBIAS

Tuesday, Nov. 06, 2007

Today, a Senate Judiciary Committee vote is scheduled on retired federal Judge Michael Mukasey, President George W. Bush's nominee for Attorney General. Over two recent days at Mukasey's confirmation hearing, Senators peppered the nominee with hundreds of questions. In the ensuing week, Committee members inundated Mukasey with several hundred additional written follow-up questions. Last Tuesday, the nominee submitted 172 pages of responses to those queries.

As members contemplate their votes, I will describe, in this column, key questions Senators should ask themselves about Judge Mukasey.

Until last week, Mukasey appeared headed for smooth confirmation. After all, numerous senators had called for Alberto Gonzales to resign and had urged the appointment of an individual with qualifications resembling those of Mukasey. Mukasey had clearly responded to most questions posed in the hearing, yet only partially answered others and was unclear regarding a few, and he had comprehensively responded to senators' written queries.

As of now, many senators appear satisfied with Mukasey's commitment to restore professionalism at the Department of Justice (DOJ) and to depoliticize the Department. Committee members seem more concerned, however, about the nominee's responses to questions respecting federal power -- namely, when the Constitution grants the three coordinate branches shared authority, and to queries about interrogation techniques, especially the practice of "waterboarding." Accordingly, Committee members should ask a number of questions regarding Mukasey before voting.

The Overarching Issue: Executive Power

The overarching issue that has seemed to concern Senators the most is how much the Bush Administration has concentrated authority in the Executive Branch. For example, the Administration unilaterally established procedures for interrogating suspected terrorists and a domestic surveillance program without warrants issued by federal judges, in ostensible violation of the Fourth Amendment and the Foreign Intelligence Surveillance Act.

When senators asked Mukasey at the hearings whether the chief executive must obey federal laws, he responded: "That would have to depend on whether what goes outside the statute nonetheless lies within the authority of the president to defend the country." Senators must decide whether Mukasey believes this authority trumps the president's duty to obey a law, particularly in light of the fact that the Constitution empowers Congress to "provide for the common defense." Senators also ought to consult the Supreme Court's Youngstown decision, which found unconstitutional President Harry Truman's seizure of U.S. steel mills to defend the nation in the Korean War precisely because the chief executive had disobeyed federal laws. In the end, Senators must ascertain whether, in their view, Mukasey perceives authority's concentration in the Executive as an impediment to constitutional governance and to legislative prerogatives or fully supports the Administration's stunningly broad claim of authority.

Another Crucial Issue: Interrogation Techniques

The questions raised by certain interrogation techniques appear most salient for numerous Senators. The Bush Administration has advocated and seemingly employed harsh interrogation procedures with suspected terrorists since September 11. A number of Committee members find that these measures constitute, or resemble, torture and are morally suspect, ineffective and counter-productive, as their use may encourage America's enemies to deploy analogous practices.

When Senators questioned Judge Mukasey about waterboarding, he responded: "I don't know what's involved in the technique. If waterboarding is torture, torture is not constitutional." When responding to written questions, the nominee said he found the procedure "repugnant," but Mukasey refused to state whether he believed that it was illegal. The nominee's major reason for being unresponsive was that he lacked relevant information to decide about legality. Some observers, including Administration officials, have expressed concern about Mukasey's stating that waterboarding is illegal because that statement could be used in subsequent litigation against U.S. interrogators.

Senators must determine whether this concern reflects a true threat, whether Congress has already outlawed waterboarding, and whether Mukasey's unresponsiveness suggests that he would be overly solicitous of Executive Branch perspectives and interrogation techniques in general, and the claimed power to use waterboarding specifically.

A Third Key Issue: Domestic Surveillance

Another issue which has troubled numerous Senators is President Bush's 2005 revelation that the NSA had been undertaking domestic surveillance absent court-issued warrants required by the 1978 Foreign Intelligence Surveillance Act. Senators have been concerned that this action invades privacy, while Congress recently approved surveillance, with some limitations, for a half year. Senators must ask themselves how Mukasey would advise the Chief Executive and Congress to balance concerns for national security and civil liberties, as well as executive and legislative power, in this context.

Senators have also been concerned about DOJ's politicization, which was, under Attorney General Alberto Gonzales, exemplified by many U.S. Attorneys' dismissal for seemingly political reasons. DOJ and the 93 U.S. Attorney Offices have long operated with insufficient leadership, while the considerations above have undermined professionalism and morale. Senators must ask themselves whether, and if so, exactly how, Mukasey will restore professionalism and depoliticize DOJ.

Mukasey is a well-qualified nominee. Yet Senators must carefully consider whether, on these crucial issues, his views sufficiently reflect our Constitutional order.


Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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