Letter: If confirmed, Attorney General nominee Mukasey would demonstrate independence

To the Editor:

Apparently because of editing constraints, the article entitled “Mukasey nomination sparks debate at alma mater Yale” (11/1) did not fully or accurately characterize my views.

Regarding my letter published in the New York Times, I said that having listened to the full two days of testimony, I thought Prof. Jed Rubenfeld’s Times op-ed seized upon a single phrase to create a straw man theory that he then attacked: that a statute is unconstitutional if it infringes on the president’s ability to defend the country.

Your article appeared to attribute the “straw man” to me.

In fact, I said that while Mukasey probably has a broader view of presidential power than does Rubenfeld, the nominee made clear that the president’s powers are not unlimited and that he was bound by many laws that regulate foreign affairs and military affairs. As to the water-boarding controversy: I simply took issue with the idea that it would be appropriate for the nominee to announce a legal conclusion at a confirmation hearing simply on the basis of his instinct or gut reaction (which was, as is mine, that the technique is “over the top”) in response to a demand by a senator to do so, without the benefit of proper legal investigation and analysis including that of classified materials of which the Senator is aware but, at this point, the nominee is not.

Mukasey, I said, showed his “independence” (not “impartiality”) by refusing to buckle even when his own future was on the line, just as he would do if he were Attorney General.

Kate Stith

Nov. 1

Stith is the Lafayette S. Foster Professor of Law at Yale Law School.

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