If the Administration was trying to avoid a fight with the left over the confirmation of Alberto Gonzales' replacement as Attorney General, they may have succeeded with the nomination of former New York district judge Michael Mukasey. The question now is whether they'll have a fight with the right. Both in Mukasey himself, and in the process by which he picked him, Bush has gone against the right, spurning their favored choice, engaging with and conceding to Democrats, and naming a New Yorker who is an unknown quantity on many of the social issues about which they care most deeply.
Through weeks of quiet deliberation, Bush abandoned the confrontational pronouncements to which Congress has grown accustomed. Instead, White House counsel Fred Fielding reached out to Democrats, including Bush's constant opponent Senator Charles Schumer of New York, who had previously recommended Mukasey as a Supreme Court nominee. Schumer and Fielding went so far as to discuss names, and Mukasey's came up. "We're in an alternate universe," says one Senate aide. "Charles Schumer saying something nice about a guy used to be the kiss of death."
The Administration also adopted the Clinton-like process of trial ballooning: leaking names through allies to see how much of a storm would ensue. For the better part of last week, the name of a conservative darling and respected lawyer, former U.S. Solicitor General Ted Olson, was on everyone's lips in Washington. But strong pushback from Democrats, including Senate Majority leader Harry Reid, who said he'd torpedo an Olson nomination, apparently sank his chances. "Olson would've been a bloodbath," says the Senate aide.
But in dropping Olson and going with Mukasey, Bush has opened himself up to attack from the right. Conservatives are worried about Mukasey's 1994 denial of asylum for a Chinese man who said his wife had been forced to have an abortion under that country's one-child law, which they say indicates he's weak on pro-life issues. And though he has consistently ruled with the Administration on a number of important and high-profile terrorism cases, Mukasey broke with them in an early, crucial ruling, saying that American citizen Jose Padilla had a right to a lawyer, no matter what his status in the war on terror. Mukasey is also very close to former New York Mayor Rudy Giuliani, whom social conservatives distrust.
Both ends of Pennsylvania Ave. were waiting to see the reaction of leading conservatives to the nomination Monday. The neo-conservative columnist William Kristol wrote a favorable op-ed online Saturday, but a right-wing Catholic group, Fidelis, voiced serious concerns citing his ruling in the Chinese asylum case and his appeal to the left. Senate Republicans were cautiously optimistic, but still worried. "Conservatives will respond well to Mukasey if conservative leaders point in that direction," one Senate Republican aide said Sunday. But he worried that any uncertainty among conservatives could be deadly. "Hesitation kills," he said, "It will be perceived as weakness."
There is much at stake in the nomination. Democrats are still insistent on getting to the bottom of the U.S. attorney scandal that engulfed the justice department all this year, and the question of how Mukasey will pursue that will come up in the confirmation hearings. Further down the road, a number of key questions will occupy the next Attorney General, including the rights of prisoners at Guantanamo Bay and elsewhere as well as the use of no-warrant domestic eavesdropping.
Mukasey is not guaranteed a free pass from the left: his rulings in favor of the government have upheld some of the toughest provisions of Bush's approach to fighting terrorism. However, Senate Democrats are largely positive so far on Mukasey, saying that as a judge he was very knowledgeable and an unquestioned straight-shooter. They also say he is independent, which is the highest priority of those who want to get to the bottom of any possible wrongdoing at the Justice Department under Alberto Gonzales.