Bush Runs Away Again?

I realize I'm a little late to the Michael Mukasey-for-Ted-Olson attorney general switcheroo. Although my tardiness has entirely to do with the recent crowding-out of my blogging time, it does bear some superficial resemblance to my mindset on this latest White House nominatory flip-flop.

I want to be fair to Mukasey, who is by all reports a solid conservative jurist and agrees with the President's views regarding terrorist surveillance and constitutional war-fighting powers. After all, it's not his fault that the choice fell to him after the White House ducked yet another confirmation showdown:

One source close to the White House, describing Mukasey as the clear "front-runner," said Bush advisers appear to have decided that "they didn't want a big fight over attorney general" in the Senate, especially when other qualified candidates are also available. The source said Olson, who represented Bush in the Supreme Court fight over the contested 2000 election, would be seen as "very political," despite his outstanding legal credentials.

Well, yeah - wasn't that the point? To have it out once and for all with the Donks on these issues and force THEIR unconditional surrender? They'd have had no substantive grounds not to confirm Olson, which would have simply highlighted their overweening arrogance and complete and utterly hypocritical disregard for the seperation of powers by trying to dictate the President's choice, not of a lifetime appointment to the federal bench, but a Cabinet post within his administration that would be of less than a year-and-a-half's duration in any case. Given the Dems' squeamishness at playing inter-Branch "chicken" this year, you'd have to figure they'd have ultimately let Olson through. And if they didn't? THAT's when the President could have turned to Judge Mukasey.

There's much to be gained from "having a big fight" over the next attorney-general, especially after the big fight the Dems gave Bush over his last one. Hard to see what there was to be lost - Dubya can't run again, and even if he could his approval ratings couldn't get much lower anyway. I guess it just serves as yet another dismaying reminder that George W. Bush just doesn't have the stomach for big partisan showdowns, even when they would do him a lot of good.

Which is not to say that I'm about to launch into him like I did when he chose Harriet "Mystery Meat" Miers for the SCOTUS a couple of years ago. As I alluded to above, Judge Mukasey, while not a "movement" conservative in right-wing legal circles (i.e. not "partisan"), is simpatico with Bush on counterterrorism policy, which is what the President is most looking for in an A-G. He's already received the endorsements of Bill Kristol, former U.S. attorney and Mukasey colleague Andy McCarthy, and ex-Rehnquist clerk Ed Whelan, among others. He appears entirely competent and capable of taking the DoJ helm and running with it as Speedy Gonzales was not. And his lack of a "partisan" reputation supposedly makes him more "confirmable," which is what the White House is principally after.

In that regard you have to chuckle at Chucky Schumer's antics. Two years ago he was touting Judge Mukasey as a "consensus" candidate for the SCOTUS on the apparent grounds that (1) he figured Bush would never select him and (2) having suggested Mukasey would give him and his colleagues at least a tissue-thin veneer of "bipartisan reasonableness" after they borked whatever poor bastard the President did elevate to Olympus. Except, of course, Leaky and Chucky and Uncle Teddy chickened out on filibustering the man Dubya did choose, John Roberts, and Schumer's cynical manuevering receded into obscurity's rear-view mirror.

Until now. Sure enough, Chucky's views on Judge Mukasey have abruptly changed:

Still, it is unclear whether Mr. Schumer is willing to shepherd Judge Mukasey through confirmation hearings whose main topic could shape up to be the politicization of the Justice Department during Attorney General Gonzales' tenure.

Mr. Schumer, one of the Senate's fiercest critics of Mr. Gonzales, has long touted Judge Mukasey for a position higher than the district court judgeship he held for nineteen years. In 2003, the senator recommended the judge as an eventual successor to Chief Justice Rehnquist on the Supreme Court. Earlier this year, he floated Judge Mukasey's name for the attorney general position.

In a statement issued last night, the senator was somewhat guarded. "For sure we'd want to ascertain his approach on such important and sensitive issues as wiretapping and the appointment of US attorneys, but he's a lot better than some of the other names mentioned and he has the potential to become a consensus nominee," the statement said.

To me, that translates to, "We're going to put Mukasey in a hammerlock and tell him the facts of life if he ever expects to get a single one of our votes." Basically, more of the same partisan abuse that was heaped upon Oh, Boy, Alberto, except that Judge Mukasey doesn't have the job yet. And if he doesn't give the wrote left-wing answers that will be expected of him, he'll be attacked and dismissed as "partisan" just like Olson pre-emptively was, and the White House will have precisely the "big fight" they didn't want.

Clearly Chucky has hopes that Mukasey can be "persuaded" to be their catspaw at DoJ, blocking and checkmating Bush counter-terror policies at every turn. I have no idea how malleable the former federal judge is; probably not nearly as much as Schumer appears to believe, but that very uncertainty is why Mukasey is an inferior selection to what Ted Olson would have been.

You'd never guess in a million years who shares that view:

[N]o president should be cowed by the kind of threats lobbed by Mr. Reid. Mr. Olson is undoubtedly partisan. It's no coincidence that he represented Mr. Bush before the Supreme Court in Bush v. Gore. But if he had settled on Mr. Olson, Mr. Bush would have been nominating one of the premier lawyers of his day. Mr. Olson served honorably during the Reagan Administration as head of the influential Office of Legal Counsel. His years as solicitor general under Mr. Bush proved he could serve ably and without political rancor even while adhering to a conservative view of the law. Mr. Olson would have restored to the top job at the Justice Department a level of intellectual heft and gravitas that had been absent during Mr. Gonzales's 2 1/2 -year reign of errors.

Again, this is not a knock, implicit or otherwise, on Michael Mukasey. He probably will be confirmed, though not as easily as the White House is hoping, and he probably will serve out the remainder of Dubya's term at Justice as well and ably as Ted Olson would have. But this confirmation showdown was another opportunity to sharpen ideological differences, take the political offensive, and slap the other side back on its collectiv(ist) heels, with an eye on defining the issue battlegrounds for next year's campaign. And as with so many that have come before, George W. Bush threw it away, indeed, sacrificed it on the alter of his accursed "New Tone".

Kate O'Beirne may have said it best:

The opinion of Andy McCarthy and others familiar with the veteran federal judge will help persuade conservatives that he merits their support, but their anger and frustration over the pre-emptive opposition to Ted Olson will remain.

On the other hand, maybe I can say it better: why is it permissible for Democrats to be as partisan as they wanna be, politicize every institution they touch (think the Justice Department wasn't politicized in the Clinton years?), but not Republicans, to the extent of ruling out a man dismissed as "partisan" who has functioned so evenhandedly and honorably as Solicitor-General that even the Washington Post can't deny it? And why is Dubya letting them get away with it - again?