[Congressional Record Volume 153, Number 137 (Monday, September 17, 2007)]
[Senate]
[Pages S11536-S11538]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      NOMINATION OF JUDGE MUKASEY

  Mr. McCONNELL. Mr. President, today the President nominated Judge

[[Page S11537]]

Michael Mukasey to be our Nation's 81st Attorney General. He has 
impressive credentials. I look forward to learning more about his 
record.
  In this regard, the Judiciary Committee should promptly hold hearings 
on his nomination, carefully examine his record, and vote in a timely 
manner. For the past several months our Democratic colleagues have told 
us we need to install new leadership at the Justice Department and that 
we ``can't afford to wait,'' in their words
  A successful nominee, they have told us, is someone with integrity 
and experience, who respects the rule of law and who can hit the ground 
running. The senior Senator from New York has assured us that he and 
his colleagues would not obstruct or impede someone with these 
qualifications.
  Judge Mukasey appears to be just such a nominee. He is a former 
Federal prosecutor and Federal judge with extensive experience, 
especially in terrorism-related matters. He served on the Federal trial 
bench for 19 years, and for the last 6 years of his career he has been 
the chief judge on the U.S. District Court for the Southern District of 
New York.
  He presided over the 1993 World Trade Center bombing case, in which 
he was widely respected for his equanimity, intelligence, and deep 
appreciation for the complex legal issues at stake.
  The prosecutor, Andrew McCarthy, recently wrote a compelling first-
hand account of Judge Mukasey's conduct in that case for the National 
Review. I ask unanimous consent to have the article printed at the 
close of my remarks.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  (See exhibit 1.)
  Mr. McCONNELL. In the article, Mr. McCarthy notes the Second Circuit 
Court of Appeals, after upholding Judge Mukasey's work, took the highly 
unusual step of praising his handling of the case. Here is what the 
court of appeals wrote:

       The trial judge, the Honorable Michael B. Mukasey, presided 
     with extraordinary skill and patience, assuring fairness to 
     the prosecution and to each defendant and helpfulness to the 
     jury. His was an outstanding achievement in the face of 
     challenges far beyond those normally endured by a trial 
     judge.

  Judge Mukasey has earned the deep respect and admiration of the 
lawyers who have appeared before him and of the many other public 
servants who have observed and studied his work. His intelligence, 
experience, and fairmindedness would seem to make him an ideal 
candidate to lead the Justice Department.
  At the very least, these qualities warrant timely and fair 
consideration of his nomination by the Judiciary Committee. 
Unfortunately, recent press reports, including a Roll Call article from 
just a couple of hours ago, indicate that at least some Democrats on 
the Judiciary Committee are more interested in dragging out this 
nomination than in installing new leadership at the Justice Department.
  They have said they might hold Judge Mukasey's nomination hostage in 
order to extract still more administration documents in the U.S. 
attorneys matter.
  This would be extremely unfortunate. By injecting politics into the 
confirmation process, committee Democrats would be turning their backs 
on earlier public comments that installing new leadership at the 
Department was of critical importance. They would be turning their 
backs on earlier public assurances that they would not obstruct or 
impede--again their words--a nominee with Judge Mukasey's qualities.
  Now is the chance for our Democratic colleagues to prove they were 
serious when they cried out for new leadership at the Justice 
Department by following Senate precedent, weighing the nominee's 
qualifications, and voting in a timely fashion.
  I would hope they would not hold him hostage, forgetting the words of 
the senior Senator from New York, who has told us:

       This Nation needs a new Attorney General and it cannot 
     afford to wait.

  In these times, it is especially important that the Senate act 
promptly. We are at war, and as the distinguished ranking member has 
noted: Apart from the Defense Department, no department of the 
executive branch is more important to defending our Nation than the 
Department of Justice.
  We need to act. Now, I understand that Judge Mukasey will begin his 
courtesy visits tomorrow with Members of the Senate. I am hopeful my 
colleagues will be able to meet with him so the Senate can begin 
considering his nomination as soon as reasonably possible.

                               Exhibit 1

 Judge Mukasey Would Make a Stellar Attorney General; A Gifted Former 
      Prosecutor and Renowned Jurist Could Be Just the Right Fit.

                        (By Andrew C. McCarthy)

       It is not exaggeration to say that the United States 
     Department of Justice is among the handful of our nation's 
     most important institutions. It is the fulcrum of our rule of 
     law.
       The department must be above reproach. It must enforce our 
     laws without fear or favor. It must be the place the courts, 
     the Congress and the American people look to without 
     hesitation for the most unflinching recitation of fact and 
     the most reliable construction of law. Creativity is 
     welcome--it is the department's proud boast always to be home 
     for some of the world's most creative legal minds. Defense of 
     executive prerogatives is also essential--for the department 
     is not the servant but the peer of the judges and lawmakers 
     before whom it appears, with its first fidelity to the 
     Constitution. Creativity, however, is not invention, and 
     prerogative is not partisanship.
       The department must foremost be the Department of Justice. 
     Its emblem is integrity. We can argue about where the law 
     should take us, in what direction it should evolve. We must 
     first, however, be able to know what it is. For that, we must 
     be able to rely without question on the department and its 
     leader, the attorney general.
       President Bush is about to select a new attorney general at 
     a particularly tempestuous time. In today's Washington, even 
     national security has not been spared from our fulminating 
     politics. In the cross-fire, we need stalwart leadership of 
     incontestable competence and solid mooring in the 
     department's highest traditions. Without it, a growing crisis 
     of confidence will grip not only the courts but field 
     prosecutors across the nation.
       To address such a crisis, the President is fortunate to 
     have several able candidates. One I know particularly well, 
     though you may not, would instantly restore the department's 
     well-deserved reputation for rectitude, scholarship, vision 
     and sober judgment. He is Michael B. Mukasey.
       I had the privilege of appearing before Judge Mukasey for 
     nearly three years, from 1993 into 1996, when, as an 
     Assistant U.S. Attorney in the Southern District of New York, 
     I led the prosecution of Sheikh Omar Abdel Rahman and eleven 
     other jihadists who had waged a terrorist war against the 
     United States--bombing the World Trade Center, plotting to 
     strike other New York City landmarks (including the United 
     Nations complex, the FBI's lower Manhattan headquarters, U.S. 
     military installations, and the Lincoln and Holland Tunnels), 
     and conspiring political assassinations against American and 
     foreign leaders.
       The case was bellwether for 9/11 and its aftermath, 
     presenting all the complex and, at times, excruciating issues 
     we deal with today: the obscure lines a free society must 
     draw between religious belief and religiously motivated 
     violence, between political dissent and the summons 
     to savagery, between due process for accused criminals 
     with a right to present their defense and the imperative 
     to shield precious intelligence from incorrigible enemies 
     bent on killing us.
       The trial was probably the most important one ever 
     witnessed by . . . nobody. In an odd quirk of history, our 
     nine-month proceeding began at the same time as, and ended a 
     day before, the infamous O.J. Simpson murder trial. While 
     Americans were riveted to a televised three-ring circus in 
     California, Judge Mukasey, in his meticulous yet decisive 
     way, was demonstrating why our judicial system is the envy of 
     the world: carefully crafting insightful opinions on the 
     proper balance between national security and civil liberties, 
     permitting the government to introduce the full spectrum of 
     its evidence but holding it rigorously to its burden of proof 
     and its ethical obligations; managing a complex litigation 
     over defense access to classified information; and developing 
     jury instructions that became models for future national-
     security cases.
       All the defendants were convicted, and the sentencing 
     proceedings, complicated by the need to apply novel federal 
     guidelines to a rarely used, Civil War era charge of 
     seditious conspiracy, ended in the imposition of 
     appropriately lengthy jail terms. No one, however, could 
     contend that the case had not been an exemplar of our system 
     at its best. Indeed, in an unusual encomium, the Second 
     Circuit Court of Appeals, upon scrutinizing and upholding the 
     judge's work, was moved to observe:
       ``The trial judge, the Honorable Michael B. Mukasey, 
     presided with extraordinary skill and patience, assuring 
     fairness to the prosecution and to each defendant and 
     helpfulness to the jury. His was an outstanding achievement 
     in the face of challenges far beyond those normally endured 
     by a trial judge.''

[[Page S11538]]

       No one should have been surprised. By the time the Blind 
     Sheikh's trial was assigned to him, Judge Mukasey had already 
     forged a reputation as one of America's top trial judges. (In 
     my mind, he is peerless.) That was so because he was also one 
     of America's most brilliant lawyers. From humble beginnings 
     in the Bronx, he had earned his bachelor's degree at Columbia 
     before graduating from Yale Law School in 1967. As a judge, 
     he tolerated nothing but the best effort from prosecutors 
     because he had, himself, been a top prosecutor. He well 
     understood the enormous power in the hands of young assistant 
     U.S. attorneys, the need to temper it with reason and sound 
     judgment. He grasped implicitly and conveyed by example that 
     the great honor of being a lawyer for the United States 
     Department of Justice is that no one gets, or should expect 
     to get, an award for being honest and forthright. It is a 
     realm where those attributes are assumed.
       In 1988, Michael Mukasey left a lucrative private law 
     practice when President Ronald Reagan appointed him to the 
     federal bench. He was exactly the credit to his court and his 
     country that the President had anticipated. Quite apart from 
     terrorism matters, he handled thousands of cases, many of 
     them high-stakes affairs, with skill and quiet distinction. 
     In his final years on the bench before returning to private 
     practice, he was the Southern District's chief judge, putting 
     his stamp on the court--especially in the aftermath of the 
     September 11th attacks. Through the sheer force of his 
     persistence and his sense of duty, the court quickly reopened 
     for business despite being just a few blocks away from the 
     carnage. Indeed, it never really closed--Judge Mukasey 
     personally traveled to other venues in the District to ensure 
     that the court's vital processes were available to the 
     countless federal, state and local officials who were working 
     round the clock to investigate and prevent a reprise of the 
     suicide hijackings.
       Characteristically, the judge ensured that the Justice 
     Department was able to do its vital work in a manner that 
     would withstand scrutiny when the heat of the moment had 
     cooled. Judges, himself included, made themselves available, 
     day and night, to review applications for warrants and other 
     lawful authorization orders--no one would ever claim that in 
     his besieged district, crisis had trumped procedural 
     regularity. And as investigators detained material witnesses 
     and scrambled to determine whether they were mere information 
     sources or actual terror suspects, Judge Mukasey made certain 
     that there was a lawful basis for detention, that detainees 
     were represented by counsel fully apprised of that basis, and 
     that the proceedings were kept on a tight leash--under strict 
     judicial supervision, with detainees promptly released unless 
     there was an independent reason to charge them with crimes.
       Judge Mukasey's mastery of national security issues, 
     reflecting a unique fitness to lead the Justice Department in 
     this critical moment of our history, continued to manifest 
     itself after 9/11. He 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. Later, in accepting the Federal Bar 
     Council's prestigious Learned Hand Medal for excellence in 
     federal jurisprudence, Judge Mukasey spoke eloquently of the 
     need to maintain the Patriot Act's reasonable national 
     security protections. More recently, he has written 
     compellingly as a private citizen with unique insight about 
     the profound challenges radical Islam presents for our 
     judicial system.
       At this moment in time, the nation would be best served by 
     an attorney general who would bring the department instant 
     credibility with the courts and Congress, provide a needed 
     shot in the arm for prosecutors craving a reminder of the 
     department's proud traditions, and reassure the public of the 
     administration's commitment to the department's high 
     standards. There are precious few people who fit that bill, 
     and of them, Michael Mukasey may be the least well known 
     nationally. But he is as solid as they come. Our country 
     would be well served if he were asked, once again, to answer 
     its call.

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