The air is filled with veto threats and hyperbole, over appropriations and children’s health insurance. But at the same time, the nomination of Michael Mukasey for attorney general showed a new level of consultation and conciliation by the White House. [IMGCAP(1)]
The president avoided the strong temptation to put a sharp stick in the Democrats’ collective eye with a nomination that would have been sharply contested, and instead he actively sought out a nominee who would fit his basic governing philosophy but also be acceptable to key Democrats. Both sides showed that advice and consent can work.
Mukasey is clearly an impressive man and almost certainly will win confirmation by a wide margin. He will be a huge improvement from his predecessor, who was an utter embarrassment for the Justice Department and the administration. It is important that Mukasey get into the post as expeditiously as possible, for the sake of the integrity of the justice system. But his confirmation should be thorough and done in a deliberative fashion.
Mukasey should not be held hostage to extraneous demands by Senators — but it is fair to tie his confirmation timetable to a much more cooperative approach by the White House and the Justice Department on issues like providing relevant information to Congress on the U.S. attorney debacle. At the same time, Mukasey needs to provide assurances on how he will handle the investigation into the U.S. attorney problem and how he will ensure the independence of the Public Integrity Section as more scandals emerge. We also need the assurance that he will depoliticize the Civil Rights Division and its voting rights section, clearing up problems that go back to political appointees like Hans von Spakovsky.
Most important, Judiciary Committee members of both parties need to question Mukasey closely and vigorously on his views of executive power. This is not just some theoretical or arcane issue. It is real and far-reaching.
The Bush administration has consistently taken the most expansive view of executive power of any administration in our lifetimes. I don’t fault any president or vice president for vigorously promoting and defending executive power. The long knives are always out for presidents, and there are enough ambiguities and overlaps in the Constitution surrounding the powers and roles of all three branches that presidents need to protect their prerogatives. But this president and vice president, and their acolytes and enablers inside and outside the administration, have pushed the envelope, broken the barrier and continued to push for an unprecedented breach in checks and balances, one that many of us have found troubling.
There have been two bedrock rationales for the sharp expansion of executive power — the need to relax checks and balances and civil liberties in wartime; and the theory of the unitary executive. On the former front, it is of course important to make sure that a president has the flexibility necessary to protect the country against internal and external threats. But the rationale used here — we are at war against terror, a war that will almost by definition never end — is a rationale for a permanent state of emergency with plenipotentiary police powers for a president.
Under those circumstances, with a president eager to use his powers to the fullest, it is very hard for people who are a part of his administration to put on necessary brakes or challenge the headlong rush to executive supremacy. Those who have been willing to put principle first —like former Deputy Attorney General James Comey, and from his hospital bed, John Ashcroft — are to be commended and appreciated. So are those conservatives who have gone against the current tide, like former Rep. Mickey Edwards (R-Okla.), author of a new and excellent book on what conservatism really means.
What about Mukasey? There are signs that he will stand up for what is right when it comes to the integrity of the department. But there are also signs that, in the name of battling terrorists, he will cut corners, ignore warnings and relax bedrock constitutional principles. It is up to the Senate to get real assurances that he has a commitment to the Constitution — the real Constitution, not the one created by the unitary executive crowd, including a small but influential core of conservative scholars inside and outside the administration, and at least one Supreme Court justice, Samuel Alito, who helped craft the dubious unitary executive theory when he worked in the Justice Department.
Some scholars, like John Yoo, really believe this theory. Others, I suspect, are situational constitutionalists — they love expansive executive power when the president is one of their own but will find new rationales for checking presidential power when the president is an adversary (for example, the eagerness many conservatives had for independent counsels to cut President Bill Clinton’s power at the knees).
I want a tough-minded AG who understands that in the real world, there are many evil people trying to kill us. I understand the desire of a president to have an attorney general who not only pursues the administration’s policies and priorities but also is a loyalist. But integrity to the law and the Constitution come first, along with a real-world understanding of what the original intent of the framers was when it came to legislative, executive and judicial powers. I hope several Republican Senators, not just Arlen Specter (Pa.), have enough commitment to real conservatism and the real Constitution to ask the tough questions of Mukasey as well.
Norman Ornstein is a resident scholar at the American Enterprise Institute.