ROBERT SIEGEL, host:
Now, a reaction to the Mukasey nomination from two legal scholars. Jonathan Turley is professor of public interest law at George Washington University, and joins us in our studio. Welcome...
Professor JONATHAN TURLEY (Public Interest Law, George Washington University): Thank you.
SIEGEL: ...to the program once again. And Douglas Kmiec is law professor at Pepperdine University, and he joins us from Malibu, California. Welcome back to the program, Doug Kmiec.
Professor DOUGLAS KMIEC (Law, Pepperdine University): Thank you.
SIEGEL: And Jonathan Turley, first. Your appraisal of the nominee, what would you say?
Prof. TURLEY: Well, he's a very fine judge. He has a very good reputation. He's also extremely conservative. And his record is not entirely clean from the perspective of some people concerned about civil liberties. He has been - he reversed on occasion for essentially pulling the trigger too fast on defendants, not giving them hearings. But I have to say, many judges have that same problem.
But what - I think what concerned many people are - actually some of the statements he's made out of court. That he wrote, for example, an op-ed in The Wall Street Journal about the Jose Padilla case. And much about that column causes concerns. Among other things, he seems to blame the legal system for the problems in Jose Padilla case. Instead of blaming the executive branch, which threw this guy around the country like a plaything - just moved him from place to place.
SIEGEL: His critique was more - was systemic rather than finding fault with the government, you're saying?
Prof. TURLEY: Yeah. He questioned whether the U.S. court system can handle these types of cases, which is bizarre because he was the judge in the Blind Sheikh case. He had handled an extremely complex case extremely well.
SIEGEL: Douglas Kmiec, your appraisal of Michael Mukasey's nomination.
Prof. KMIEC: Well, I agree with Jonathan. He's a splendid lawyer. He's a splendid judge. I have known him for a good number of years by reputation. By virtue of the fact that his nomination came through the Office of Legal Counsel when I was serving President Reagan and I can tell you then that his reputation as an assistant U.S. attorney, as someone in private practice, was filled with the kind of laudatory statements that you've already played.
On the issues that confront his confirmation, I think the most important thing is that he does have a solid grasp of the practical reality of trying terror cases. And I think it is justifiable to ask the question of whether or not the existing court system is adequate to always both protect the interest of defendants, because some rules of court have had to be modified to protect those civil liberties interests, and also to protect the information that is gathered by the United States as a matter of intelligence. I think he had sensitivity to both sides - national security and civil liberties.
SIEGEL: I'd like to hear what both of you made of Ari Shapiro's reporting of what Senator Leahy, the chairman of the Judiciary said, which is that there are some linkage here perhaps between the timing of confirmation and all those outstanding issues about subpoenas and investigations of justice.
Jonathan Turley, should there be such linkage, and is it likely to delay this nomination, or is it really a slam-dunk?
Prof. TURLEY: Well, I think the nomination itself is probably not problematic for most people on the merits; he doesn't have a record that cries out for upheaval vote against him. But I do believe that it is legitimate for senators to withhold confirmation of this nominee until old business is satisfied. The Bush administration has ground many legislative investigations to a halt by refusing information that many of us believe it should turnover to an Oversight Committee. It is perfectly appropriate for the Senate to use that constitutional authority in the checks and balances of our system.
I find it surprising that they should do what the president asks and do a prompt confirmation when the president, on other issues, has ground these things to a halt.
SIEGEL: Douglas Kmiec, what do you think?
Prof. KMIEC: Well, I think it's a mistake to link the confirmation to re-fighting or reconsidering the disagreements that one had with Alberto Gonzales. Yes, if there are legitimate investigatory questions, I'm certain that Judge Mukasey will address them.
I think the more important questions are do we need to reform the legal system to address terrorism going forward? And we have some specific substantive questions: The availability of habeas corpus, which is being litigated before the Supreme Court, but which is also up for debate as part of the Military Commission Act of 2006; the consideration of wiretapping and surveillance in terms of the Foreign Intelligence Surveillance Act and the amendments that were made to that provision. I think it's more important to hear from Judge Mukasey whether he - how he addresses the substance of those two considerations rather than readdressing or rehearsing the U.S. attorney firing.
Prof. TURLEY: Well, I think there's more than just the U.S. attorneys firings. We're talking about a great amount of documents - virtually anything that comes within, it seems, a block of the White House ends up getting a privilege argument. But I'll tell you the problem with this nominee. And that is he has the same self-doubt about the capability of the U.S. system and our Constitution to handle terrorism that has plagued this administration, he is not a change in that sense. And I would have thought at this point, someone would have come into this position to say, perhaps we made a mistake, perhaps we doubted our system too much. And I would have thought it would have been the judge that tried the Blind Sheikh and showed it could be done.
SIEGEL: I'd like to ask both of you this. Judge Mukasey has been nominated to be the attorney general for the last year of the second term of a president who has lost control of both houses of Congress and much of the popularity that he once enjoyed. How much influence can any attorney general have in that situation, Professor Kmiec?
Prof. KMIEC: Well, I think this an inquiry in terms of his management ability. And one of the things that's true is that he has been chief judge, or was, until recently, chief judge of one of the busiest courts in the United States. He was the head of the official corruption unit when he served in the U.S. Attorneys Office. I think it will be very important for him to hit the ground running by reestablishing his faith and his confidence in the senior career officials in the Department of Justice, both presidentially appointed and who are there as a matter of career service. And if he does that, and if he lays out a specific agenda with regard to the kind of the war on terror versus the prosecution of terror in the criminal courts in a lucid manner, he will succeed.
SIEGEL: And Jonathan Turley, the last word is yours, and a relatively brief one.
Prof. TURLEY: Well, honestly, I doubt that he would have been the nominee if this administration had more time or higher expectations for the remainder of this term. He's not a movement Republican. I think they're hoping to repair the damage done in the previous six years. But I don't think they have high expectations. I think he is, in some ways, a placeholder and someone they hope will bring down these flames on Capitol Hill.
SIEGEL: Well, Jonathan Turley of George Washington University and Douglas Kmiec of Pepperdine University, thanks to both of you.
Prof. TURLEY: Thank you.
Prof. KMIEC: Good to be with you.
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