George W. Bush will reportedly nominate Michael Mukasey to succeed Alberto Gonzales as attorney general today, a move that stems either a) from the recognition that Democrats have the votes to block a more ideological nominee or b) from the calculation that the relatively short-term benefit of having such a nominee -- the next attorney general will serve, at the most, the same 16 months that Bush will -- isn't worth the fight that nominating one would have sparked.
While Senate Majority Leader Harry Reid said last week that Senate Democrats wouldn't confirm Ted Olson if Bush nominated him, Sen. Chuck Schumer, the Democrat who pushed hardest on the U.S. attorneys investigation, has told the White House that Mukasey would be an acceptable pick. Indeed, in a letter to Bush back in 2003, Schumer urged the president to consider Mukasey as a possible Supreme Court nominee, including him in a list of candidates the senator deemed "legally excellent" and "ideologically moderate."
The president didn't take Schumer's advice then. Over the next two years, he nominated three would-be Supreme Court justices, none of whom were "ideologically moderate," and only two of whom could have been considered "legally excellent." Now that Bush seems ready to nominate Mukasey, Schumer says the retired U.S. District Court judge is "a lot better than some of the other names mentioned" and "has the potential to become a consensus nominee."
Some of that is because of the "ideologically moderate" part, or at least what passes for it anymore. As a judge, Mukasey stood up to the Bush administration early and often in the Jose Padilla case, although he also went on to argue, in a Wall Street Journal Op-Ed, that the Padilla saga actually shows "why current institutions and statutes are not well suited to even the limited task of supplementing what became, after Sept. 11, 2001, principally a military effort to combat Islamic terrorism."
But for a lot of senators, what will matter more is the fact that Mukasey isn't just another Bush crony. Remember, the primary problem with Gonzales wasn't his right-wing ideology; indeed, for many Republicans, the former attorney general's conservative bona fides were always suspect. What did Gonzales in was what should have been obvious to everyone from the very beginning: He was an intellectual lightweight, valued -- like Harriet Miers -- not for his skills or insights as a student of the law but for his loyalty as a friend to the president. He wasn't up to the task of serving as attorney general when he was nominated, and he certainly wasn't up to the task of defending his ham-fisted handiwork when called to do so this year.
In selecting Mukasey, Bush seems to be avoiding a repeat of any of that. A New Yorker who serves as a judicial advisor for Rudy Giuliani's presidential campaign, Mukasey is sufficiently outside of Bush's circle, inner or outer, that he really can't be called to account for what has happened at Justice over the past two years, let alone the last six. As Sen. Joe Biden told Fox News over the weekend, it's still going to be important for the Senate Judiciary Committee to ask whether Mukasey is "going to stand up and defend the Constitution" or just be "the president's guy." But at least with Mukasey, those are questions to be asked. When Bush nominated Gonzales three years ago, we already knew the answers.