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Mukasey and the Tea Leaves By: Henry Mark Holzer
FrontPageMagazine.com | Tuesday, September 18, 2007


Faced with the welcome departure of hapless Bush crony Alberto Gonzales from atop the Department of Justice, and after consulting the Oracles who dominate the United States Senate, the administration has nominated former federal judge Michael Mukasey to be Attorney General of the United States.

As usual, the tea leaf-readers are out in force, looking for signs suggesting what kind of Attorney General Mr. Mukasey will be during the roughly fourteen months he will serve, if confirmed.

We will soon be awash in guru-generated analyses of Judge Mukasey’s cases, from which legal “experts” will inform the unwashed about what America can expect from an Attorney General Mukasey.

They will be looking in the wrong place, for at least three important reasons.

First, Mr. Mukasey was a federal district judge, meaning that he sat on a trial (not appellate) court. There, the large percentage of his work, as important as it was, consisted of refereeing factual disputes and applying the law as it came to him from the United States Supreme Court and the United States Court of Appeals for the Second Judicial Circuit. While federal trial judges occasionally write on a clean legal slate, all such decisions will inevitably be reviewed by a United States Court of Appeals, where law is made rather than merely applied. Federal trial court judges are not policy-makers; they rarely even implement policy. (Full disclosure: Many years ago I was offered a federal district judgeship in the same court where Mr. Mukasey sat, but I respectfully declined. I was not interested in spending most of my time refereeing factual disputes, both civil and criminal.)

Second, the Attorney General of the United States, though certainly bound by professional and political ethical strictures, is in the end (and the beginning, too) the president’s man. He is a political appointee of the President of the United States at whose pleasure he serves. Within ethics and the law, the Attorney General is bound to serve the policy ends of the president. If, for example, the president desires an all-out effort to enforce the Voting Rights Act at the expense of other equally legitimate statutes, that is what the Attorney General has to do, even if he would rather expend department resources on stronger enforcement of a different statute. Unlike in his former courtroom where Mr. Mukasey was virtually king (subject of course to the Court of Appeals), as Attorney General he will take his orders from the President of the United States. Or he will resign.

Third, applying the law as mandated by Congress, the United States Court of Appeals for the Second Circuit, and the Supreme Court of the United States, is very different from making the countless policy decisions vested in the chief law officer of the United States. Deciding pre-trial motions, ruling on trial objections, charging a jury, compelling litigants to disclose evidence, sentencing convicted defendants, granting temporary injunctions, and performing all the other routine (yet important) work of a trial judge cannot be compared to prioritizing the resources of the vast Department of Justice, choosing deputies and assistants who in turn will run the many divisions within the Department of Justice, advising the president and government agencies about what the law allows and what it does not, liaising with CIA and NSC and the White House counsel, testifying before Congress, vetting the DOJ budget, and performing all the other tasks in the Attorney General’s portfolio. In other words, the Attorney General of the United States is an administrator.

So that’s where scrutiny of Mr. Mukasy should be directed. The question is how well did he run the United States District Court for the Southern District of New York as an administrator? Scrutinizing the decisions he made there is a waste of time.


Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.



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