Douglas Kmiec: What Judge Mukasey -- and Congress -- can learn from previous occupants of the post
[Mr. Kmiec, assistant attorney general and head of the Office of Legal Counsel to Presidents Ronald Reagan and George H.W. Bush, is a professor of constitutional law at Pepperdine University.]
The office of attorney general was created by an isolated paragraph in the Judiciary Act of 1789. And Judge Mukasey clearly meets its requirement of being "learned in law" -- Yale Law School, followed by ample experience as a federal prosecutor, in private practice, and for 18 years (a half dozen as chief judge demonstrating important managerial capability) on one of the busiest federal courts in the land. The southern district of New York gets more than its share of complex securities and corporate cases, along with the usual docket of federal criminal prosecutions. Judge Mukasey threaded the legal needle in early terrorism cases, distinguishing himself in the words of his appellate reviewers as a man of "extraordinary skill and patience, assuring fairness to the prosecution" and defendant alike.
It is widely assumed that Judge Mukasey inherits a Justice Department in some considerable disarray, with vacancies at the top of almost all the divisions and suspicion and frustration among the career ranks. But at least he inherits a department. Edmund Randolph, the first attorney general, had to get along all by himself (the Department of Justice not being created until 80 years later). While Judge Mukasey will be forced to take a considerable pay cut from the private practice he has enjoyed since leaving the bench in 2006, he's certainly better off than Randolph, who had to make do with a half-salary (about $1,500).
But Randolph had an initial advantage Judge Mukasey lacks: He was well known to the president. George Washington had utilized Randolph's legal counsel numerous times before he assumed public office. Despite rose garden oratory, President Bush doesn't really know Judge Mukasey, and therein lies a challenge to effectiveness.
Some of the most effective attorneys general in modern times have been close associates, even kin, of the president. Bobby Kennedy, when he was just 35 years old, assumed the role for his brother and by many accounts acquitted himself well, giving pivotal advice resolving the Cuban Missile Crisis, aggressively pursuing organized crime, and laying the framework for the early federal civil-rights legislation.
Likewise, close friend and California legal adviser, Edwin Meese, for whom I worked, had the ear and total confidence of President Reagan. The seamlessness of this relationship gave birth to a strengthening of efforts to reduce both the demand and supply sides of the illegal drug trade, a substantial reform of the antitrust policies to coincide with other deregulatory steps to spur a then-sputtering and inflated economy, a revival of respect for the separation of powers and the interests of the states, and a judicial selection effort that underscored fidelity to text and a restrained judicial role. It was Mr. Meese's careful screening that led to the nomination to the federal bench of men and women of Judge Mukasey's caliber, including Judge Mukasey himself in 1987.
By contrast, Clinton Attorney General Janet Reno, whose legal credentials were impeccable, was often thought to lack necessary access to the president. President Clinton's third choice when his first two had confirmation difficulty, Ms. Reno is remembered for missteps that led to the deadly Branch-Davidian siege, but also for the expansion of the independent counsel's inquiry into matters related to Monica Lewinsky. Depending on your political perspective, the latter was either a profile in courage or an abuse of process that provoked an unwarranted impeachment process....
Read entire article at WSJ
The office of attorney general was created by an isolated paragraph in the Judiciary Act of 1789. And Judge Mukasey clearly meets its requirement of being "learned in law" -- Yale Law School, followed by ample experience as a federal prosecutor, in private practice, and for 18 years (a half dozen as chief judge demonstrating important managerial capability) on one of the busiest federal courts in the land. The southern district of New York gets more than its share of complex securities and corporate cases, along with the usual docket of federal criminal prosecutions. Judge Mukasey threaded the legal needle in early terrorism cases, distinguishing himself in the words of his appellate reviewers as a man of "extraordinary skill and patience, assuring fairness to the prosecution" and defendant alike.
It is widely assumed that Judge Mukasey inherits a Justice Department in some considerable disarray, with vacancies at the top of almost all the divisions and suspicion and frustration among the career ranks. But at least he inherits a department. Edmund Randolph, the first attorney general, had to get along all by himself (the Department of Justice not being created until 80 years later). While Judge Mukasey will be forced to take a considerable pay cut from the private practice he has enjoyed since leaving the bench in 2006, he's certainly better off than Randolph, who had to make do with a half-salary (about $1,500).
But Randolph had an initial advantage Judge Mukasey lacks: He was well known to the president. George Washington had utilized Randolph's legal counsel numerous times before he assumed public office. Despite rose garden oratory, President Bush doesn't really know Judge Mukasey, and therein lies a challenge to effectiveness.
Some of the most effective attorneys general in modern times have been close associates, even kin, of the president. Bobby Kennedy, when he was just 35 years old, assumed the role for his brother and by many accounts acquitted himself well, giving pivotal advice resolving the Cuban Missile Crisis, aggressively pursuing organized crime, and laying the framework for the early federal civil-rights legislation.
Likewise, close friend and California legal adviser, Edwin Meese, for whom I worked, had the ear and total confidence of President Reagan. The seamlessness of this relationship gave birth to a strengthening of efforts to reduce both the demand and supply sides of the illegal drug trade, a substantial reform of the antitrust policies to coincide with other deregulatory steps to spur a then-sputtering and inflated economy, a revival of respect for the separation of powers and the interests of the states, and a judicial selection effort that underscored fidelity to text and a restrained judicial role. It was Mr. Meese's careful screening that led to the nomination to the federal bench of men and women of Judge Mukasey's caliber, including Judge Mukasey himself in 1987.
By contrast, Clinton Attorney General Janet Reno, whose legal credentials were impeccable, was often thought to lack necessary access to the president. President Clinton's third choice when his first two had confirmation difficulty, Ms. Reno is remembered for missteps that led to the deadly Branch-Davidian siege, but also for the expansion of the independent counsel's inquiry into matters related to Monica Lewinsky. Depending on your political perspective, the latter was either a profile in courage or an abuse of process that provoked an unwarranted impeachment process....