Executive Session

Floor Speech

EXECUTIVE SESSION -- (Senate - November 08, 2007)

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Mr. SCHUMER. Thank you very much, Mr. President. I wish to thank Senator Specter for yielding time and I wish to thank all my colleagues for this debate.

I intend to vote to confirm Michael B. Mukasey to be the 81st Attorney General of the United States. I do so for one overarching reason: the Department of Justice, one of the crown jewels among our Government institutions--once the crown jewel--is now adrift and rudderless. It desperately needs a strong and independent leader at the helm to set it back on course. A number of people's lives who are affected day to day in quiet but material ways by what this Justice Department does are at risk. We don't hear from them. Their issues, whether it is the ability to vote or the right to be safe or the ability to be protected from economic crime, we don't hear about that. But it matters.

Under previous leadership--or lack thereof--the Justice Department has become adrift. The Justice Department has become rudderless. The Justice Department has become politicized. The Justice Department has become an agency where morale is as low as it has ever been. So we desperately need a strong and independent leader at its helm to set it back on course, and that is not a trivial statement or a statement to be forgotten or passed over. I believe Judge Mukasey is that person.

As almost everyone in America knows, the Justice Department has been run into the ground by the Bush administration, especially under Alberto Gonzales. As I said when I introduced Judge Mukasey, he will be inheriting an agency experiencing its greatest crisis since Watergate and, if confirmed, his tasks will be no less momentous and no less difficult than that facing Edward Levi when he took the reins of John Mitchell's Justice Department after Watergate. A department in such crisis should not be left to an unconfirmed and unaccountable caretaker.

We need to look no further than our own investigation in the Senate Judiciary Committee to see that we need a real leader at the top of the Justice Department. What we learned in that investigation over the last 9 months leads inexorably to the conclusion we cannot afford a caretaker Attorney General for the next 14 months.

Let me review--because they seem almost forgotten in this Chamber tonight--some of the most disturbing revelations. We learned that outstanding U.S. attorneys were dismissed without cause or, worse, because they may have been too tough on Republicans or too soft on Democrats. We learned that career Civil Rights Division lawyers have been driven out in droves; that when these lawyers said that civil rights were being violated or the Voting Rights Act was being violated, they were overruled by political decisions made from the top.

In my judgment, there was no way that any fair Justice Department would have allowed the voter ID process that is now in place in Georgia and take back the ability to vote that was fought for so long and hard.

We learned that individuals appear to have been prosecuted for political reasons. In the other House, the Judiciary Committee did an extensive investigation, and in the process of doing one, it appears more and more likely that a Democratic Governor in Alabama is sitting in jail because of a political prosecution. How can we have that in America? How can we allow that? How can we countenance it?

We learned that White House liaison Monica Goodling unlawfully rejected young lawyers for career jobs because they were not conservative ideologues.

We learned that there were improper political litmus tests in hiring decisions in the Civil Rights Division, in the prestigious Honors Program, and even in the Summer Law Intern Program. So politics permeated the Justice Department--the Department, above all, that should be immune from politics and had been until this administration.

We learned that Bradley Schlozman, in violation of the Department's own policy, brought indictments on the eve of an election in Missouri, seemingly to influence the result. We learned that politics seems to have trumped professionalism in decisionmaking about voting rights cases, tobacco litigation, and other matters. The list goes on and on.

Justice is sacred in this country. It is the Justice Department that must produce justice.

In sum, we learned that politics has been allowed to infect all manner of decisionmaking at the Department of Justice.

Now we are on the brink of a reversal. There is virtually universal agreement, even from those who oppose Judge Mukasey, that he would do a good job in turning the Department around in these areas.

One of my colleagues who is voting against the nominee nonetheless lauded Judge Mukasey as ``a brilliant lawyer, a distinguished jurist and, by all accounts, a good man.''

Another colleague on the Judiciary Committee, who is also voting nay, had this to say:

Over the remaining 15 months of the Bush Presidency, the Department must recover its credibility and its reputation. ..... Judge Mukasey appears to have the intelligence, the experience, and the stature to undertake this very important task.

Such comments of confidence echo the comments of those who have appeared before the judge in court. As a jurist, Judge Mukasey has a well-deserved reputation for efficiency, fairness, and integrity. Indeed, even those who didn't always receive the benefit of a favorable ruling from the judge have been quick to describe the judge's basic fairness and decency.

Upon his retirement from the bench, one of Jose Padilla's lawyers said, ``I admire him greatly'' and described herself as ``another weeping fan.'' That is a lawyer for Mr. Padilla.

Another Padilla lawyer has said, ``I don't always agree with where he comes out, but I am happy, always happy to draw him as a judge. You are going to get your day in court.'' He went on to say that ``his sense of fairness and due process--it's more than intellectual. It's really down to the genetic level. It's in his DNA.''

There are many such testimonials for Judge Mukasey. Because he is so dead wrong on torture, which I think he is, does not take away all of these other things. And if we are to reject him, make no mistake about it, we will not have somebody in his place who can live up to that standard. Should we reject Judge Mukasey, President Bush has already said he would install an acting caretaker Attorney General who could serve for the rest of his term without the advice and consent of the Senate. It would be another Alberto Gonzales or maybe even worse. It would be the Cheney-Addington wing running the Justice Department on the issues of security. Judge Mukasey is hardly perfect. He would not be the person I would have nominated, but he is clearly head and shoulders better than what we would get. That is not something to be dismissed. That is not something to be forgotten. It is hardly mentioned on this floor.

The main function of the Justice Department would be taken back and railroaded far from where it should be, and it would be gone for another long 14 months. It would mean accepting and exacerbating the declining morale at the highest levels of the Department. It would mean delaying vital reforms relating to depoliticizing prosecutions. It would mean tolerating continued vacancies in many of the top positions at the Justice Department. Perhaps most important, it would mean surrendering the Department to the extreme ideology of Vice President Cheney and his Chief of Staff, David Addington. All the work we have done--the hearings, the letters, the requests to get the Attorney General to resign--would be undone in a quick moment. That is serious, colleagues.

I have complete respect for people who disagree. It is a values choice. But let's not forget that a caretaker Attorney General will not be close to Judge Mukasey on the issues that brought the downfall of Attorney General Gonzales. Let us also not forget that Judge Mukasey has had a long and distinguished career. Because his views on torture are different from so many of ours, including my own, does not evaporate all of these other important considerations.

Let me be clear on the torture question, which understandably motivates so many of my colleagues. I deeply oppose this administration's opaque, mysterious, and inexplicable policy on the use of torture. This is not a policy that was constructed by Judge Mukasey.

In particular, I believe that the cruel and inhumane technique of waterboarding is not only repugnant but also illegal under current laws and conventions, period. I also support Congress's efforts to pass additional measures that would explicitly ban this and other forms of torture. I voted for Senator Kennedy's antitorture amendment in 2006, and I am a cosponsor of a similar bill in this Congress. If it was important to do it in 2006, it is also important to do it in 2007.

When Judge Mukasey came before the Senate Judiciary Committee last month, he refused to state that waterboarding was illegal. That was unsatisfactory, that was wrong, and that will be a blemish on his distinguished career for as long as he lives. But he has personally made it clear that if Congress passed further legislation in this area, the President would have no legal authority to ignore it--not even under some theory of inherent authority granted by article II of the Constitution. That is a very important point.

My colleagues say we will never pass an amendment on torture and waterboarding. That may be; it may not. But the fact that Judge Mukasey has rejected the overreaching theory of the unitary executive certainly in this area, and in others, says something about what kind of Attorney General he will be on torture, on wiretapping, and on all of the other issues where basically this Department and this administration thought Congress should have no say at all.

Furthermore, maybe it will be the courts that will rule torture is illegal. Judge Mukasey will abide by those court decisions that make waterboarding illegal. Judge Mukasey will allow those court decisions to stand. I don't think we doubt that.

The expansive article II argument, of course, is one that this administration--in the form of President Cheney and David Addington--has explicitly endorsed. In an infamous torture memo, the following passage was reportedly insisted upon by David Addington:

Prohibitions on torture must be construed as inapplicable to interrogations undertaken pursuant to his commander-in-chief authority. ..... Congress may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.

That is a horrible statement. Unlike either of his predecessors, Judge Mukasey specifically rejects this view.

I asked him:

If Congress were to legislate against certain forms of coercive interrogation, such as waterboarding, in all circumstances, not just relating to those in the Department of Defense custody, would it be acting within its constitutional authority?

He answered ``yes.'' No qualifier. And contrary to the views of the Vice President and his Chief of Staff, he specifically stated that the President would not have legal authority to ignore it, even under his inherent authority under article II. For a Bush nominee, this is no small commitment. It is a dramatic difference from both Attorney General Ashcroft and Attorney General Gonzales. It is a quantum leap over the views of Alberto Gonzales and signals that we may yet get an independent review--and perhaps reversal--of some of the worst of the administration's legal policies.

I also believe this because I asked him what he thought of a book written by Jack Goldsmith called ``The Terror Presidency.'' Mr. Goldsmith, as many will recall, was the former head of the Office of Legal Policy, the principal person who sounded the alarm over badly reasoned and overreaching legal opinions within the Government. He was the courageous official who started the process that led to the infamous showdown in the hospital room of John Ashcroft over the President's warrantless wiretapping program.

In his book, Mr. Goldsmith is a relentless critic of the unilateral my-way-or-the-highway approach of Vice President Cheney and David Addington. When I asked Judge Mukasey what he thought of the book, he said he thought it was superb, and he endorsed many of its arguments. He also told me privately that the administration's unilateral approach to legal policy was likely responsible for its low approval ratings in the polls. So we have a nominee who is head and shoulders above his predecessors in a number of ways, including in his commitment to work with Congress.

One more thing on the issue of torture, my colleagues. Let's assume Congress cannot pass a law, and let's assume even that the courts do not rule the way we think they should. Still, Judge Mukasey will be head and shoulders different, very possibly, than a caretaker. Mukasey would be more likely than a caretaker to find on his own that waterboarding and other coercive techniques are illegal. He didn't say they are illegal. A caretaker would. He said he would have to study them. He should not have to. There is still a chance that somebody regarded as thoughtful and independent, and a lawyer above all, may--and I cannot say he will, and I wish I could--find on his own that waterboarding and other coercive techniques are illegal. Certainly, there is more of a chance with Judge Mukasey than with a caretaker. So even if you are voting on the issue of torture alone--which I am not--to vote down Judge Mukasey and install an independent caretaker will not solve the problem of torture and, in all likelihood, will leave us worse off, not better.

Judge Mukasey's answers to our questions demonstrated more openness to ending the practices we abhor than either of those who were the previous Attorney General nominees.

In many respects, Judge Mukasey reminds me of Jim Comey, a former Deputy Attorney General in the Bush administration who has been widely praised for his independence.

Would we turn down Jim Comey knowing his courage? No. Today, would we turn down Goldsmith? No. Both of them have very conservative views.

Might I have an additional 5 minutes to finish my remarks, I ask my colleague from Pennsylvania.

Mr. SPECTER. The Senator may.

The PRESIDING OFFICER (Mr. MENENDEZ). The Senator is recognized.

Mr. SCHUMER. Mr. President, again, if the issue is torture alone, we clearly will be as bad off as we are today with a caretaker. We may--not will, maybe not even likely--have a chance, a decent chance of being better with Mukasey than with the alternative. And as with Comey and Goldsmith, no, Mukasey will not have our views particularly on issues of security. No one this President nominates will. That is why we are working so hard to get a new President with different views. But on issues of the rule of law and independence and integrity, Judge Mukasey will clearly be much better than others.

I wish to say this to my colleagues, a vast majority of my colleagues who oppose this nomination: I respect their views. I understand the anger and the anguish about what this administration has done to that beautiful lady who stands in the harbor of the city in which I live. I share that anguish. I share it. Unfortunately, we are in a world where this administration will continue for another 14 months.

Let me ask my colleagues to think about this: Let's say we reject Judge Mukasey tonight and the caretaker is installed, and 6 months from now the exact same policies we abhor continue. Will this have been a great victory?

I understand the importance of standing up to the President. Few would accuse me of not doing that. And I understand the importance of symbolic victory. But this is a tough choice because there is a lot at stake on the other side. There is at stake the integrity of a department which is in shambles, which is politicized, and which has routinely rejected the rule of law which is the fundamental wellspring of this Nation and this democracy. And we have a chance, at least a good part of the way, to restore it. The Department of Justice is the front-line agency safeguarding our civil rights, fighting public corruption, curbing violent crime, enforcing environmental laws, and much more.

I deplore the administration's opaque policy on torture, as I mentioned before, but I also care about attempts to affect elections through suspiciously timed criminal prosecutions. I care about criminal cases brought for political reasons. I care about allegations that our leading law enforcement agency is stocked with inexperienced cronies rather than experienced professionals. I care about a downward spiral in civil rights cases brought in recent years. I care about a loss of morale among a 100,000-person strong institution and every week, at one airport or another in this country, how insistent U.S. attorneys came to me and said: Do something. Judge Mukasey, in all likelihood, will do something. A caretaker will not. I don't want to turn those pleas aside, even though I have strong disagreement with Mr. Mukasey on many substantive issues, torture among them. I care about a continuing uptick in violent crime due to a department's failure to keep its eye on the ball and not have the most qualified people in important positions. I care about the Department, and I care about justice. And it is not a small matter to take someone who is measurably better than what his replacement would be and reject it.

Again, this is value choice. There are good arguments on each side. People's values will have them come down on different sides. But anyone who thinks this is an easy choice, anyone who thinks that should Judge Mukasey be rejected things will improve from the desperate, deplorable state in which they are now is wrong.

No one questions that Judge Mukasey would do much to turn around the Justice Department and move to remove the stench of politics from this vital institution. I believe we should give him that chance. There is too much at stake not to.

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