Opposition to the Confirmation of Judge Michael Mukasey to be U.S. Attorney General

Media 11.5.07

Recipient: Senate Judiciary Committee

The Honorable Patrick J. Leahy
Committee on the Judiciary
United States Senate
Washington, D.C. 20510

The Honorable Arlen Specter
Ranking Member
Committee on the Judiciary
United States Senate
Washington, D.C. 20510

Dear Chairman Leahy and Ranking Member Specter:

On behalf of the undersigned organizations, we write to express our opposition to the confirmation of Judge Michael B. Mukasey to the office of Attorney General. At his hearing and in his responses to written questions, Judge Mukasey refused to condemn waterboarding as torture, endorsed broad assertions of executive authority, and failed to make firm commitments to the enforcement of civil rights. For these reasons, we are compelled to oppose his nomination.

What is urgently needed in our next Attorney General is an unequivocal commitment to thoughtfully and independently uphold the rule of law. However, on human and civil rights issues, it is difficult to distinguish Judge Mukasey’s views from the controversial views of this Administration. It seems certain that, after his careful avoidance of making commitments that might be antithetical to the Administration’s interests, Judge Mukasey is either unwilling to exercise the independence we need in our next Attorney General on critical issues, or his views align perfectly with those of the President.

On the issue of interrogation techniques, Judge Mukasey acknowledged that the law holds that torture is unlawful, but declined to state whether waterboarding is torture. Waterboarding, a technique defined as the use of a wet towel to induce the misperception of drowning, has been declared unlawful by all four current Judge Advocate Generals of our armed services. Judge Mukasey’s condemnation of this technique as “repugnant,” while true, is inconsequential; what counts is his legal opinion of whether the practice is torture. In spite of the fact that waterboarding is widely classified by military officials and human rights experts as unlawful torture, Judge Mukasey refused to answer this question directly.

Judge Mukasey further endorsed a view of executive authority that greatly expands the power of the President at the expense of the other branches of government. Judge Mukasey suggested he would allow the President to engage in warrantless surveillance of persons in the United States in violation of congressional laws. Indeed, he outlined a view of the Constitution that privileged the view of the executive branch over that of Congress on matters of constitutional interpretation, making it possible for the President to disregard the laws of Congress based on the President’s constitutional judgment. In fact, under this view, the President’s failure to enforce a congressionally-enacted law would prevent the courts from ever having an opportunity to weigh in, making the President the final arbiter of constitutionality of our laws.

Finally, with respect to questions regarding how he would improve civil rights enforcement, Judge Mukasey offered platitudes, but no firm commitments. Civil and voting rights enforcement have been low priorities within the Department of Justice, making it especially important that the next Attorney General have a thorough understanding of our civil rights laws and be committed to the vigorous and unbiased enforcement of those laws. Judge Mukasey failed to offer solutions to the extremely low number of cases brought by the Civil Rights Division on behalf of women and minorities in employment discrimination cases. On an issue as central to the civil right community as voting rights, Judge Mukasey would not commit to the straightforward proposition that a voter identification requirement that disproportionately impacts minorities could violate Section 2 of the Voting Rights Act. His responses to questions concerning civil and voting rights enforcement evidenced little understanding of the problems that currently plague the Civil Rights Division.

Nowhere is the Senate’s constitutional role in reviewing a presidential cabinet nominee more important than in the case of a prospective Attorney General. Judge Mukasey has failed to deliver on the expectation that he would be willing to challenge this Administration’s widely condemned human and civil rights policies. As a result, there is serious doubt about his suitability for the position of Attorney General and about the impact his tenure would have on civil and human rights in this country and elsewhere. Thus, we must urge you to not confirm Judge Mukasey.

Thank you for your consideration. If you have any questions, please feel free to contact LCCR Vice President and Director of Public Policy Nancy Zirkin at (202) 263-2880, or LCCR Counsel and Policy Analyst Paul Edenfield at (202) 263-2852.

Leadership Conference on Civil Rights
American-Arab Anti-Discrimination Committee (ADC)
Asian American Justice Center
Global Rights: Partners for Justice
Human Rights First
International Union, United Auto Workers
National Association for the Advancement of Colored People (NAACP)
National Fair Housing Alliance
National Urban League
Open Society Policy Center
People For the American Way
Service Employees International Union (SEIU)