So the buzz about nominee-for-Attorney-General Mukasey was that he was a smart nominationfor the Bush adminstration because of his supposed "independent" decisions from the federal bench.
What? Bush & Co. supporting independence??? Not offering up another loyalist (who they know would have a hard time getting confirmed)? How enlightened! How just. What a good sign.
And then the news from the confirmation hearings. First, some rumbling of trouble over his refusal to say waterboarding is unequivocally torture, when most of the experts say, it can't be anything but. Not a good sign.
Then the nail in the proverbial coffin (hmmm... wonder if Cheney would consider that torture?):
From Dan Froomkin:
The USA Today editorial board writes that Mukasey's views on torture are important but "of far greater concern, is what Mukasey said about the limits of presidential power. While the president cannot act illegally, he said, 'illegal' is a fuzzy concept when it comes to the president.
"The nominee asserted that the president has broad and ill-defined powers to ignore a law when he believes his constitutional authority to defend the nation empowers him to do so. Senate Judiciary Chairman Patrick Leahy, D-Vt., described this as 'a loophole big enough to drive a truck through.' . . .
"[B]efore the Senate confirms Mukasey, it should be confident that he stands unequivocally for the principle that no American is above the law, not even the president."
Former White House associate counsel Bradford A. Berenson writes in a USA Today with an opposing view: "To say, as Judge Mukasey has, that the president has certain inherent powers over military and intelligence matters that Congress might not be able to regulate or take away is nothing more than an acknowledgment of constitutional reality. Nor should he be faulted for refusing to render snap legal judgments about classified interrogation methods without access to either the facts or the existing legal analysis of the department he has been nominated to lead."
Adam Cohen writes in a New York Times opinion piece: "President Bush's nominee for attorney general, Michael Mukasey, was asked an important question about Congress's power at his confirmation hearing. If witnesses claim executive privilege and refuse to respond to Congressional subpoenas in the United States attorneys scandal -- as Karl Rove and Harriet Miers have done -- and Congress holds them in contempt, would his Justice Department refer the matter to a grand jury for criminal prosecution, as federal law requires?
"Mr. Mukasey suggested the answer would be no. That was hardly his only slap-down of Congress. He made the startling claim that a president can defy laws if he or she is acting within the authority 'to defend the country.' That is a mighty large exception to the rule that Congress's laws are supreme.
From Obama's press release via Slate:
While his legal credentials are strong, his views on two critical and related matters are, in my view, disqualifying. We don't need another attorney general who believes that the President enjoys an unwritten right to secretly ignore any law or abridge our constitutional freedoms simply by invoking national security. And we don't need another attorney general who looks the other way on issues as profound as torture. Judge Mukasey's professed ignorance of the debate over the propriety of practices like “waterboarding,” or simulated drowning, as a means of interrogation, was appalling.
From Democracy Now:
Opposition Grows Against Mukasey NominationPlea to Congress: Please, please, please keep up this level of support of our Constitution! We're dying out here, quite literally. Without a just head of the Justice Department, we lose such an important protection against Executive abuse of power. Our country will then resemble a toothless lion with atomic bombs. Or something like that.
Opposition is growing to Attorney General nominee Michael Mukasey. On Monday Democratic Senator Chris Dodd publicly announced he would vote against Mukasey. Hours later Senators Joseph Biden and Barack Obama announced they too might oppose his nomination. All three Senators are running for president. Dodd criticized Mukasey for claiming that the president of the United States could stand above constitutional statutes. Dodd said: "That is about as basic as it gets. You must obey the law. Everyone must." Dodd, Biden and Obama all criticized Mukasey for refusing to say whether waterboarding was a form of torture. Obama told the New York Sun: "No nominee for attorney general should need a second chance to oppose torture and the unnecessary violation of civil liberties."