As Michael Mukasey LAW ’67 navigates his attorney general confirmation proceedings, he is stirring up controversy both on a national stage and — perhaps inevitably — within the Yale Law School community.
Mukasey, a former federal judge nominated in mid-September by President George W. Bush ’68, has faced sharp criticism from Democratic senators because of his decision not to classify certain interrogation techniques as illegal. Several students and professors at Yale said they have reservations about the nominee, even as some prominent Law School graduates have come out in support of their fellow alumnus. But even as some prominent Law School graduates come out in support of their fellow classmate, several Yale law professors are actively expressing reservations about Mukasey in columns and interviews.
The Senate Judiciary Committee’s hearings on Mukasey’s nomination began with an introduction by a law school classmate of Mukasey’s — Sen. Joseph Lieberman ’64 LAW ’67. Lieberman did not hold back in his praise of Mukasey.
“This is a man of the law, not a man of politics,” Lieberman said during the proceedings. “Forty-three years ago, I saw Mike Mukasey and I see essentially the same person today.”
But on the second day of Mukasey’s testimony, the former judge refused to say that waterboarding — an interrogation technique that simulates drowning — is a form of unconstitutional torture. This stance, along with other comments about the wartime powers of the executive branch, led some senators to oppose his confirmation.
Outside of Washington, Yale law professor Jed Rubenfeld has made his misgivings about Mukasey clear. In the Oct. 23 edition of the New York Times, Rubenfeld wrote a column “Lawbreaker in Chief.”
In the piece, Rubenfeld called on Mukasey to clarify his comment that the president does not necessarily have to obey all federal statutes in situations where the law conflicts with national defense interests.
“If Judge Mukasey cannot say plainly that the president must obey a valid statute, he ought not be the nation’s next attorney general,” Rubenfeld wrote.
In an interview with the News, Rubenfeld said Mukasey must define his stance on executive power in relation to the expansion that it has seen under President Bush.
“I’m not saying Judge Mukasey does support that radical position on executive power,” Rubenfeld said. “The point of my piece was to say that the Senate should ask him to make his view more clear.”
But the debate within the Yale Law School — though in some ways internal — carried on in the public sphere.
On Oct. 26, the New York Times published a letter to the editor from Rubenfeld’s colleague, Yale law professor Kate Stith. Stith took issue with Rubenfeld’s piece, writing that throughout the proceedings, Mukasey “repeatedly and emphatically stated that ‘the president does not stand above the law.’ ”
Stith argued that Mukasey was right in saying that the president is not required to abide by statutes that are unconstitutional because they infringe on the president’s responsibility to defend the country.
Stith said in an interview with the News that Mukasey was right not to call waterboarding torture because he has not yet reviewed classified materials regarding the interrogation technique. She said Mukasey’s comments have made it clear to her that he would be an impartial attorney general.
“Just as he did to Sen. Whitehouse, he would have the backbone to stand up to the physical White House,” she said. “I don’t want the Attorney General to make important legal pronouncements on the basis of their initial gut reaction.”
Law School Dean Harold Koh did not respond to requests for comment Wednesday.
Yesterday, Mukasey submitted a letter over 170 pages long to the Senate Judiciary Committee, in which he said he would still not call waterboarding torture.
Senator Arlen Specter LAW ’56, a Pennsylvania Republican who had initially called for Mukasey to elaborate on his comments, said the letter eased his concerns.“I think that the extensive letter which Judge Mukasey has submitted goes about as far as he can go,” Specter said during a committee hearing yesterday. “He has repudiated waterboarding, he has rejected it, but he has stopped short of making a determination of legality.”
But Democratic presidential candidate Hillary Clinton LAW ’73 has said she will oppose Mukasey’s confirmation.
Just as some senators have said the letter is still not a sufficient response from Mukasey, Anthony Vitarelli LAW ’09 said Mukasey did not go far enough in his comments — Mukasey should come out unambiguously against waterboarding, he said.
Vitarelli, a member of the Yale Law Democrats, said he was enthusiastic about Mukasey’s nomination when it was first announced, but has been disappointed by Mukasey’s performance in the hearings.
Until the Senate confirms a nominee, Peter Keisler ’81 LAW ’85 will continue to serve as Acting Attorney General. Keisler began his service on Sept. 17, when former Attorney General Alberto Gonzales resigned from office.