In a move with deep historic resonance for the Jewish community, President George W. Bush has turned to a respected Jewish jurist to restore credibility to a controversy-damaged Justice Department. The nomination is winning praise from a range of Jewish leaders, though his positions on a range of issues of concern to Jewish groups, including church-state law and abortion, remain a mystery.
This week’s selection as attorney general of retired Judge Michael Mukasey, 66, who has deep roots in New York’s Modern Orthodox community, echoes the 1974 appointment of Edward Levi to take over a department scarred and demoralized by the Watergate scandals. Levi is the only Jewish attorney general in American history until now.
“In both cases you have a distinguished jurist
who is bringing a lifelong devotion to the law to a Justice Department mired in crisis,” said Jonathan Sarna, a Brandeis historian. “It is often the case that outsiders are brought in at times like these. It’s not surprising that these presidents chose Jews with great legal competence.”
In another historical parallel, Mukasey, like Levi, will quickly have to deal with explosive issues involving the limits to federal investigative authority.
But the broadly favorable response by Jewish leaders to his nomination, and signs of support from key Senate Democrats, concealed many question marks about Mukasey’s views.
As a federal judge in Manhattan for 19 years, he left a scant record on church-state law and abortion rights, adding to the surprise of why he was picked by a president who until now has made ideology a litmus test for cabinet membership.
“He’s not a social conservative, as far as I can tell, and that’s important to our community,” said Marc Stern, legal director for the American Jewish Congress and a longtime leader in church-state jurisprudence. “We have no idea what he thinks about civil rights, no idea about his positions on church-state issues. And we don’t know much about what he thinks about abortion.”
And Mukasey is not personally close to Bush, another prime consideration for top administration posts. In fact, the two met for the first time only this month.
“That the president was willing to nominate a man whose views on some of these social issues are not known shows how focused the administration is on one issue,” Stern said.
Focus On Terrorism
And that issue is terrorism.
Mukasey presided over the trial of Sheik Omar Abdel Rahman, who was convicted in a case involving the 1993 bombing of the World Trade Center, and ruled in the controversial case involving Jose Padilla, charged in a “dirty bomb” plot.
Mukasey, while differing with the Bush administration on some details, earned a reputation as a forceful defender of the controversial legal procedures used by the Bush administration in the war on terrorism.
“He has not been a rubber stamp for the administration’s policies on terrorism but he is a very deep skeptic about the law’s ability to cope with terrorism,” said Stern. “He doesn’t take the reflective response of civil libertarians that the only way to fight terrorism is through the ordinary legal system. The only question is whether he goes too far the other way.”
During the World Trade Center trials, defense attorneys demanded Mukasey be removed from the case because of his Jewish affiliations. Attorney William Kunstler argued in a district court motion that Mukasey’s Orthodox Jewish and Zionist views rendered him unfit to try the case.
That motion was thrown out. Today, major Muslim groups are being cautious in responding to the appointment.
“We won’t be taking any formal position on the nomination. Instead, we are hoping that whoever becomes attorney general will maintain the civil liberties of all Americans, an issue that has been the top concern of the American Muslim community,” said Ibrahim Hooper, spokesman for the Council on American Islamic Relations (CAIR).
But he said his group will have “concerns about any nominee who favors aspects of the Patriot Act that we believe violate civil liberties.”
Mukasey’s status as an Orthodox Jew is “irrelevant,” Hooper said. “We would hope he would not allow his political and religious beliefs to cloud his judgment as attorney general, but that goes for any attorney general of any faith.”
Some Jewish groups said that while they do not expect to take a position on the nomination, they will encourage members of the Senate to use confirmation hearings to raise issues stemming from administration policies in investigating and prosecuting suspected terrorists and the treatment of foreign detainees.
“His record is an interesting mix of asserting judicial independence on one hand and recognizing executive authority on the other,” said Mark Pelavin, associate director of the Religious Action Center of Reform Judaism. “Nobody questions that this guy is a serous conservative, but he is someone who has not hesitated to think for himself. And he is someone who is well positioned to restore some measure of confidence in the Justice Department, which is very important.”
But Pelavin said he hopes lawmakers will ask tough questions about a range of civil liberties issues, including the treatment of foreign detainees and domestic wiretapping and surveillance.
Several Jewish leaders said Mukasey’s views on issues such as abortion and church-state separation are unlikely to play a major role in confirmation hearings.
“Let’s face it, if confirmed quickly, the man will have only 400 days in office,” said an official with a liberal Jewish group. Detainee abuse, domestic surveillance, the chaos within the Justice Department and constitutional questions involving presidential authority — not the hot-button social issues — will be the focus in the days to come, this activist said.
Mukasey’s roots in New York’s Modern Orthodox community are deep. One observer who has known him since the nominee entered Manhattan’s Ramaz School, an Orthodox day school, in second grade, said that while Mukasey’s legal credentials are strong, his athletic prowess left something to be desired.
“He wasn’t the greatest at sports,” said Rabbi Haskell Lookstein, the longtime principal of the Ramaz School in Manhattan and spiritual leader of Congregation Kehilath Jeshurun on the Upper East Side. “He was usually the last one picked for athletic teams, but he really tried hard.”
At various times Rabbi Lookstein was Mukasey’s camp counselor, high school teacher and bar mitzvah teacher. He said the future lawyer and judge was “always on the conservative side. His writing for The Rampage, the student newspaper, was particularly noteworthy; he took very strong opinions and expressed himself well. He has always been one of the finest, most moral and most analytical people I have known,” said Rabbi Lookstein. “It was the best choice Bush could have made, picking someone with such moral clarity.”
Mukasey retains his connection to the school. His children attended Ramaz and his wife served as head of the lower school.
Abraham Foxman, national director of the Anti-Defamation League, said the Mukasey appointment was “wise” and he expects “bipartisan support” for confirmation, but admitted to his own personal bias.
“His family comes from the same town where I was born. My parents knew his parents over there,” he said, referring to a town that was then part of Poland but now is part of Belarus.
At Kehilath Jeshurun, Mukasey was said to be close to former White House staffer Jay Lefkowitz. Several Washington sources said this week that Lefkowitz suggested his nomination to White House Chief of Staff Josh Bolten.
“I can’t imagine Jay didn’t have a hand in it,” said Nathan Diament, Washington director for the Orthodox Union. Diament praised Mukasey as “a first-rate judge; his legal mind is first rate. And, of course, he is a highly affiliated Jew.”
For a troubled White House, the Mukasey nomination — supported by Sen. Chuck Schumer (D-N.Y.), among others — avoids a costly and disruptive fight, although Senate Democrats may try to use the nomination as a lever to pry loose information about several controversies withheld by Alberto Gonzales, who recently left the post.
“This is a smart decision by President Bush, and it avoids yet another vicious partisan battle with the Congress,” said University of Virginia political scientist Larry Sabato.
“Granted, Mukasey is a conservative — a Republican president is not going to appoint a liberal as attorney general — but Mukasey is in the Edward Levi model from the Ford administration. He’s got a good chance to restore confidence in the Justice Department, not to mention morale inside Justice.”