Report: Mukasey Is Bush Pick for Attorney General

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The New York Sun

Michael Mukasey, a retired federal judge from New York, is the leading candidate to become the next U.S. attorney general, the Weekly Standard is reporting.

The announcement of the nomination of Judge Mukasey, who was chief judge for the Southern District of New York until last year and had been elevated to the bench by President Reagan, could come as early as tomorrow, the editor of the Standard, William Kristol, reported. He would succeed Alberto Gonzales, who resigned last month amid controversy.

A decision by President Bush to nominate Judge Mukasey will, Mr. Kristol reported, disappoint some conservatives who had been rooting for a former solicitor general, Theodore Olson, one of the greatest constitutional lawyers and the attorney who won from the Supreme Court the lawsuit that gave the 2000 election to Mr. Bush.

The move, if it comes, will be seen as an effort to seek a consensus in the wake of an endorsement of Mr. Mukasey by Senator Schumer, one of the members of the Judiciary Committee. It’s expected that Senator Schumer, who was one of Mr. Gonzales’ fiercest critics, would encourage other Democratic senators to confirm Judge Mukasey for the nation’s top law enforcement position. The senator has long supported Judge Mukasey. In 2003, Senator Schumer wrote President Bush to encourage him to consider Judge Mukasey among others as an eventual replacement to Chief Justice Rehnquist’s seat on the U.S. Supreme Court. In March of this year, Senator Schumer floated Judge Mukasey’s name for the job, it’s being reported, he could receive as early as tomorrow.

Judge Mukasey was endorsed for attorney general by The New York Sun in an editorial, “Mukasey’s Moment,” issued September 7. The Sun characterized Mr. Mukasey as “a tested federal prosecutor” who “has shown a great fidelity to the abiding principles that Madison and the other authors of the Constitution laid down for our Republic.” Judge Mukasey won great praise for the way he presided over the largest terrorism trial in America’s history, the case of the blind sheik and his nine collaborators who plotted to blow up landmarks across New York City, including the United Nations.
“The most contentious fights over the next year are likely to be on war-on-terror issues,” Mr. Kristol reported last night. He quoted Andrew McCarthy as explaining on National Review Online:that Judge Mukasey ” 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.” _

In a recent op-ed piece in the Wall Street Journal, Judge Mukasey said the civilian criminal justice system is inadequate for the prosecution of terrorism cases, and urged Congress to consider creating separate national security courts.

“The rules that apply to routine criminals who pursue finite goals are skewed, and properly so, to assure that only the highest level of proof will result in a conviction,” Judge Mukasey wrote in the Journal. “But those rules do not protect a society that must gather information about, and at least incapacitate, people who have cosmic goals that they are intent on achieving by cataclysmic means.”

Born in the Bronx, Judge Mukasey went to work as a federal prosecutor in Manhattan during the 1970s, rising to become chief of the official corruption unit. He befriended Rudolph Giuliani there and is the subject of a passage in Mr. Giuliani’s book describing how the two would prepare for trial together, with Mr. Mukasey playing the role of a witness while Mr. Giuliani practiced his cross-examinations. As a federal judge, Mr. Mukasey swore in Mayor-elect Giuliani in 1994 and 1998.

Along with Mr. Olson, Judge Mukasey currently advises the Giuliani campaign on judicial matters. Judge Mukasey’s son, Marc, is a partner in the New York office of Mayor Giuliani’s law firm, Bracewell & Giuliani LLP.

Judge Mukasey is currently a partner at Patterson Belknap Webb & Tyler LLP, the firm he left 19 years ago for the bench. One of his major clients was once the New York Daily News, which he defended against libel suits.

As a judge, Mr. Mukasey is best known for his presiding over the trial of the blind sheik, Omar Abdel Rahman, although he has handled many other high profile matters. Heissued the first ruling in a case that has been at the center of the national debate over presidential authority — the case involving Jose Padilla, the American citizen the government held for three years as an enemy combatant before bringing criminal charges against him in Florida.

The decision that Judge Mukasey handed down for Padilla had two components, one of which favored the government and the other Padilla. He ruled that President Bush did have the authority to hold Padilla as an enemy combatant without charging him for a crime. But he also ruled that the government must allow Padilla to see his attorneys. When the government came back and argued that allowing Padilla — who was being held in a military brig in South Carolina — to meet with his attorneys would harm their interrogation of him, Judge Mukasey reaffirmed his original order.

A 2-1 ruling by a panel on the 2nd U.S. Circuit Court of Appeals would later reverse Judge Mukasey’s decision, finding that President Bush did not have the power to detain Padilla.

Judge Mukasey has also presided over high-profile civil cases, including World Trade Center developer Larry Silverstein’s battle with the insurers of the trade center. In 2004, he dismissed lawsuits against the Italian insurance company, Assicurazioni Generali, that sought to hold the firm accountable for life insurance policies that were held by Holocaust victims.


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