THE WEEKLY STANDARD has learned that retired federal judge Michael B. Mukasey is the leading candidate to replace Attorney General Alberto Gonzales. President Bush is expected to announce the nomination as early as Monday.
Mukasey, 66, was nominated as a federal district judge for the Southern District of New York in 1988 by Ronald Reagan, and served until September 2006 with great distinction. Mukasey, widely viewed as one of the country's top trial judges, presided over important trials including the 1995 New York City terror trial of Sheik Omar Abdel Rahman and eleven co-defendants, who were convicted and received lengthy jail terms. In an unusual statement, the Second Circuit Court of Appeals, upon reviewing and upholding the judge's work, noted that Mukasey had "presided with extraordinary skill and patience, assuring fairness to the prosecution and to each defendant and helpfulness to the jury. His was an outstanding achievement in the face of challenges far beyond those normally endured by a trial judge."
Some of my fellow conservatives will be disappointed that the nominee won't be former Solicitor General Ted Olson. Olson would be a superb AG--and there is a case for nominating Olson, and inviting a Senate confirmation fight over issues of legal philosophy and executive power. There is also a case, though, for nominating an AG equally as first-rate as Olson, but one who'll be easily confirmed--and who will, I believe, come to judgments similar to Olson's on key issues of executive power and the war on terror.
While it's unfortunate that the first thing many conservatives will hear about Mukasey is that his home-state senator Chuck Schumer has praised him, that shouldn't disqualify him. Knowing Mukasey wasn't on Bush's Supreme Court short list, Schumer felt free to list him a few years ago as an acceptable "consensus" candidate for the Court. And in fact, I for one don't know enough about Mukasey's constitutional views to be sure I'd recommend him for a lifetime Court appointment. Nor would he perhaps be the best pick for AG at the beginning of a term, with hundreds of court appointments and other personnel and policy decisions in a wide range of areas ahead. But this is an appointment for the last fifteen months of an administration whose basic policies are set and which has few judges left to appoint.
The most contentious fights over the next year are likely to be on war-on-terror issues. And as Andrew McCarthy (no liberal softy on such matters!) explained on National Review Online, Mukasey is first-rate on these: "He deftly handled the enemy-combatant detention of Jose Padilla (recently convicted of terrorism crimes), forcefully endorsing the executive branch's wartime power to protect the United States from an al Qaeda operative dispatched to our homeland to conduct mass-murder attacks, but vindicating the American citizen's constitutional rights to counsel and to challenge his detention without trial through habeas corpus." Judging also by what Mukasey has written and said outside the courtroom about the Patriot Act and related matters, we can be confident he'll be effective at making the case before Congress and the public for tough legislation and sound policies on national security issues.
And he'll be hard to challenge when he does so. Mukasey testifying on behalf of Bush's FISA legislation will be like Petraeus testifying on the surge. He'll be an able public spokesman because he can't be caricatured as a partisan apologist, and the Democrats won't be able to lay a glove on him.
So my advice is this: conservatives should hold their fire, support the president, enjoy watching Chuck Schumer hoist on his own petard, and get ready for a strong attorney general for the rest of the Bush administration.