NY Times: Schumer's praise of Mukasey shows Dems have “little appetite for fight” -- but he was Schumer's suggestion

Written by Matt Gertz

Published

A New York Times article on President Bush's decision to nominate Michael B. Mukasey for attorney general reported that Sen. Charles Schumer “issued a statement on Sunday evening praising Mr. Mukasey,” which it called “a suggestion that Democrats, who are already challenging Mr. Bush over the war in Iraq, have little appetite for another big fight.” In fact, Schumer had previously named Mukasey as one of three potential attorney general nominees whose selection would likely be approved by a Democratic-controlled Senate, and Senate Democrats made clear that they were prepared to block confirmation of another potential nominee, Theodore Olson.

In a September 17 New York Times article on President Bush's decision to nominate retired federal judge Michael B. Mukasey for attorney general, staff writers Sheryl Gay Stolberg and Philip Shenon reported that Sen. Charles E. Schumer (D-NY) “issued a statement on Sunday evening praising Mr. Mukasey,” which they called “a suggestion that Democrats, who are already challenging Mr. Bush over the war in Iraq, have little appetite for another big fight.” In fact, Schumer had previously named Mukasey as one of three potential attorney general nominees whose selection would likely be approved by a Democratic-controlled Senate. Moreover, Senate Democrats made clear that they were prepared to block confirmation of former Bush solicitor general Theodore Olson.

Indeed, contrary to Stolberg and Shenon's assertion that Democrats “have little appetite for another fight” with Bush, as the Associated Press reported September 12, Senate Majority Leader Harry Reid (D-NV) declared in a written statement that “Ted Olson will not be confirmed” if he were to be nominated, adding, “I intend to do everything I can to prevent him from being confirmed as the next attorney general.” Stolberg and Shenon reported that “Mr. Olson seemed to be moving to the top of the president's short list last week until Senator Harry Reid, the Democratic leader, said Mr. Olson could not be confirmed,” but did not note Reid's statement that he “intend[ed] to do everything I can to prevent him from being confirmed.”

On the March 18 edition of NBC's Meet the Press, Schumer suggested that the administration could “clear the air” and “restore faith that the rule of law will come first and politics second in the Justice Department” if it were to replace then-Attorney General Alberto R. Gonzales with “a person like a Michael Mukasey.” Schumer continued: “I hope that's what the White House will do.” From the transcript:

TIM RUSSERT (host): Will Alberto Gonzales survive as attorney general?

SCHUMER: I think it's highly unlikely he survives. I wouldn't be surprised if, a week from now, he's no longer attorney general. He has just miscast his role, misperceived his role. Instead of just being the president's lawyer who rubber-stamps everything the White House wants, he has a role as attorney general as the chief law enforcement officer of the land without fear or favor. And on issue after issue -- the U.S. attorneys is obviously the most prominent and most egregious -- he's bungled it. And, Tim, if they -- if Attorney General Gonzales steps down, the White House has a real chance to clear the air, to restore faith that the rule of law will come first and politics second in the Justice Department, not the other way around. If they nominate somebody who, by their reputation and career, shows that they put rule of law first -- a person like a Michael Mukasey, a person like a [former deputy attorney general] Larry Thompson, a person like a [former deputy attorney general] Jim Comey -- these are conservative Republicans, but they put the rule of law first. And I hope that's what the White House will do.

As Stolberg and Shenon noted, “in 2003,” Schumer “suggested Mr. Mukasey as a possible Supreme Court nominee.” Indeed, in a June 10, 2003, letter to Bush, Mukasey was one of five potential Supreme Court nominees Schumer offered for the president's consideration. From the letter:

Having outlined the criteria I would hope you would consider, I want to offer the names of five potential Supreme Court nominees for your consideration. There is a rich tradition of Senators offering specific advice to Presidents on Supreme Court nominations. Most recently, when President Clinton was considering judicial nominees, he received advice from Senator Hatch.

According to Senator Hatch in his book, Square Peg, he advised President Clinton to consider nominating both Justice Ginsburg and Justice Breyer to the Supreme Court. He believed that both would win easy Senate confirmation and, while left of center, were “highly honest and capable jurists,” and “far better than the other likely candidates from a liberal Democratic administration.” My advice is offered in the same manner and with the goal of helping you identify a nominee who could win 100 Senators' votes, not just 51.

While there are scores of Democrats whom I would hope you would consider, I am offering only individuals who either are Republicans or have previously been nominated by Republican Presidents. The candidates I would advise you to consider are:

The Honorable Arlen Specter, Republican Senator from Pennsylvania.

The Honorable Ann Williams, Judge, Seventh Circuit Court of Appeals, nominated by President Ronald Reagan to the Northern District of Illinois.

The Honorable Edward Prado. Judge, Fifth Circuit Court of Appeals, nominated by you and unanimously confirmed by the 108th Senate.

The Honorable Michael Mukasey, Judge, Southern District of New York, nominated by President Ronald Reagan.

The Honorable Stanley Marcus, Judge, Eleventh Circuit Court of Appeals, nominated by President Ronald Reagan.

All of these individuals appear to be legally excellent, ideologically moderate, and several of them would add diversity to the Court. All of them have a history of bipartisan support, are within the mainstream, and have demonstrated a commitment to the rule of law. While I would need to do additional research on them and question them personally before announcing my unqualified support, my initial review of their records is promising.