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Mukasey and the Will to Find a Win-Win

Retired federal judge Michael Mukasey of New York is "a Republican of independent mind, professional standards and pre-eminent professional standing." Jim Watson/AFP/Getty Images hide caption

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Jim Watson/AFP/Getty Images

Before President Bush came to the Rose Garden this week and made Judge Michael Mukasey a household name, the White House conducted a selection process quite distinct from what we've come to expect.

It was wide-ranging, pragmatic and bipartisan; and it will almost certainly be successful. But it also has to make you wonder how the last six years might have been different.

The nomination of Mukasey as attorney general began with the gathering of names from senators, including Democrats. Mukasey's name was among those mentioned by the Democrats, particularly New York Sen. Chuck Schumer, the White House nemesis who led the effort to oust the current attorney general, Bush pal Alberto Gonzales. One might have thought an endorsement from Schumer a kiss of death, but not in this fall of 2007.

The vetting of AG candidates was handled this time around by two top White House officials widely recognized as "grownups," or people who want to get the job done. Josh Bolten and Fred Fielding, the White House chief of staff and counsel, respectively, have been quietly bringing a more professional air to the Office of the Executive all year. But the cumulative effect of their efforts more visible now that Bush's Texas posse — Gonzales, Karl Rove, Harriet Miers, Dan Bartlett — is back in the Lone Star State.

Bolten and Fielding were obviously looking for an AG who could do the job, command respect in the legal community and restore morale in the Justice Department. Above all, of course, the candidate needed to win confirmation and work with the Congress. They knew the Democrats had the votes to block such conservative favorites as Ted Olson, the former U.S. solicitor general. They also knew that defying this reality would waste weeks and achieve little.

Yes, fruitless nomination battles can define the parties and delight the faithful. That's what happened when Ronald Reagan, at a comparable point in his second term, tried to put Robert Bork on the Supreme Court in 1987. But right now a Bork-like struggle is the last thing this presidency needs. And to their credit, the president's men appear focused on the practical repairs that might help him salvage the last 16 months of his term.

Not too long ago, when Bush & Co. were riding high, personnel decisions and Senate confirmation were neither delicate nor difficult. If a hardliner such as John Ashcroft of Missouri lost his Senate seat, he could be installed in the AG job over the objections of 42 Democratic senators. Full speed ahead, and damn the torpedoes.

And if Ashcroft subsequently proved a bit too independent in the job, then he could be replaced by Gonzales, whose career consisted of jobs he got from George W. Bush and whose loyalty could be counted on completely.

Of course, it was that lack of any pushback from Gonzales or his deputies that eventually got the White House in trouble, not just on the firing of U.S. attorneys but on no-warrant wiretapping and other issues of civil liberties. Those troubles have not gone away, as the Senate Judiciary Committee continues to demand releveant documents and testimony that the White House refuses to provide.

Claims of executive privilege are hard to surmount. But so insistent is Judiciary Chairman Patrick Leahy of Vermont on this point that he is threatening to deny confirmation hearings for Mukasey until he gets his way. It's a standoff not easily resolved.

It would be unfortunate — even ugly — if the residue of the Gonzales episode were to delay or even derail the Mukasey nomination. Because this judge is exactly the kind of conservative the Democrats have always said they could support for any Cabinet job: a Republican of independent mind, professional standards and pre-eminent professional standing.

Choosing such an individual helps the president go forward and helps the Congress strike the bargains it needs to play its own role effectively. Both sides have something to feel good about, and that moves the entire process forward.

Had there been more of this thinking from the start, President Bush's administration may well have pursued its agenda with more political sophistication, more respect for the other branches of government, and, ultimately, more success.