Of Judges and Justice with Michael Mukasey

By: Zach Young

Former Attorney General Michael Mukasey came to speak at a Firing Line Debate on “Privacy and Security in a Digital World” hosted by the Buckley Program on April 20th, 2017. 

Michael Mukasey spoke in sharp, measured utterances. The one-time US Attorney General, district court chief judge, and fast-rising federal prosecutor now practices law at Debevoise & Plimpton and contributes regularly to the Wall Street Journal editorial page. In our brief interview, he touched on major judicial topics in the news today.

What to make of the Democratic filibuster to now-Justice Neil Gorsuch? “A strategic blunder,” he noted. Mr. Gorsuch was “nothing if not presentable” and would have sailed through the Senate regardless of Democratic obstruction. “The real battle is going to come with the next seat,” he added, noting that Democrats have ceded their most potent tool to block a less-desirable Supreme Court nominee. “That will be a real dose of Castrol oil for the Left,” he quipped.

On the judicial rebukes to President Trump’s travel ban? Mr. Mukasey viewed their legal analysis as unprecedented and far-extending. “They essentially say that, because these orders came from somebody whom they deem to be bigoted, they cannot be evaluated facially,” he summarized. By dismissing the orders on a subjective character assessment of President Trump, rather than on the constitutional merits, these judges have developed a new genre of judicial second-guessing.

And what of the Oath of Office? The judges “have delegitimized the oath he took as president,” Mr. Mukasey noted, shrugging off Mr. Trump’s pledge to preserve, protect and defend the Constitution. Emphasizing only his campaign rhetoric, the judges invite never-ending legal analysis of stadium speeches, written platforms, and offhanded remarks. “I suppose [Mr. Trump] can never sign an order on this or many related subjects—because of who he is.” So much for blind justice.

Is Mr. Trump wrong to lambast “so-called” judges? “I’m generally not for tit-for-tat,” Mr. Mukasey replied. He also cautioned, however, that outcry over criticism of judges could be overblown. As a federal judge, Mr. Mukasey noted, “I found that my salary was just the same size the months when I got criticized as the months when I got praised.” Given the tremendous public support lent to judges who have checked Mr. Trump, mediated fears of a partial judiciary seem ill-founded.

Has originalism been living up to its promise? On this note, Mr. Mukasey struck a more ambivalent tone. On the one hand, he observed: “The originalism debate that Justice Scalia fought has changed the nature of legal analysis to the point where people on both sides are debating it on his terms.” Indeed, he said, constitutional inventiveness is no longer “completely unmoored” as it had become by the mid-to-late twentieth century. Nonetheless, Mr. Mukasey worries about “how important it has become who the justices are.” Since Griswold v. CT (1965), a case that “started here in New Haven, which was a project of the Yale Law School,” judges have been “drawing arbitrary lines” on subjects as profound as the meaning of life. The politicization of judicial nominations should not come as a surprise. “In truth, it really does matter who the judge is in a political way, and it shouldn’t,” he remarked.

Any advice for you people today looking to engage in public service? “Do what interests you, so long as it doesn’t burn any bridges to what you might ultimately want to do,” he said. Pithy, nuanced, and insightful, it was the former attorney general in mid-season form. Amen, Mr. Mukasey.

Zach Young is a senior in Silliman College and a former President of the Buckley Program.