WASHINGTON — President Bush has decided to nominate Michael B. Mukasey, [pictured right] a former federal judge from New York who has presided over some high-profile terrorism trials, as his next attorney general and is expected to announce the selection Monday, according to several people familiar with the decision.
Should the Senate confirm him, Mr. Mukasey (pronounced mew-KAY-see) would become the third attorney general to serve under Mr. Bush. As the top law enforcement officer in the United States, he would preside over a Justice Department that has been buffeted by Congressional inquiries into the firing of federal prosecutors and the resignation of the previous attorney general, Alberto R. Gonzales.
Unlike Mr. Gonzales, Mr. Mukasey is not a close confidant of the president. Nor is he a Washington insider. But people in both political parties say he possesses the two qualities that Mr. Bush has been looking for in a nominee: a law-and-order sensibility that dovetails with the president’s agenda for the fight against terror, and the potential to avoid a bruising confirmation battle with the Democrats who now run the Senate. With 16 months left in office, Mr. Bush can ill afford a drawn-out confirmation fight.
One of those Democrats, Senator Charles E. Schumer of New York, who led the fight to oust Mr. Gonzales, issued a statement on Sunday evening praising Mr. Mukasey — a suggestion that Democrats, who are already challenging Mr. Bush over the war in Iraq, have little appetite for another big fight.
“While he is certainly conservative,” Mr. Schumer said, “Judge Mukasey seems to be the kind of nominee who would put rule of law first and show independence from the White House, our most important criteria. For sure we’d want to ascertain his approach on such important and sensitive issues as wiretapping and the appointment of U.S. attorneys, but he’s a lot better than some of the other names mentioned and he has the potential to become a consensus nominee.”
Mr. Mukasey’s handling of the case of Jose Padilla, an American citizen suspected of membership in Al Qaeda, has attracted particular notice from critics of the Bush administration. Although Mr. Mukasey backed the White House by ruling that Mr. Padilla could be held as an enemy combatant — a decision overturned on appeal — he also defied the administration by saying Mr. Padilla was entitled to legal counsel.
Some critics cite the decision as a sign of Mr. Mukasey’s independence, and such issues will undoubtedly be front and center during confirmation hearings.
Beyond Mr. Schumer, who in 2003 suggested Mr. Mukasey as a possible Supreme Court nominee, the former judge is not well known on Capitol Hill, and it is impossible to predict how the hearings would go.
When another Democrat, Senator Joseph R. Biden Jr. of Delaware, was asked on Sunday about him, he said Mr. Mukasey would have to prove he was “not just the president’s lawyer, but the country’s lawyer” as well.
“He has to pass that test for me, go through that filter,” Mr. Biden said on Fox News Sunday.
White House officials refused to discuss the selection on Sunday. But Mr. Mukasey spent the afternoon at the White House, and by evening the news that he would be the nominee spilled out. Some White House allies spoke about the selection as if Mr. Bush had already announced it.
“I think the president, by reaching outside the inner circle, by reaching outside the usual suspects, is bringing someone who is really going to restore a lot of integrity to the department,”
said Jay Lefkowitz, a former domestic policy adviser to Mr. Bush who now practices law in New York. Mr. Mukasey, 66, was appointed to the federal bench by President Ronald Reagan in 1987, and retired last year to go into private practice. He spent 19 years as a federal judge in New York, including as chief judge of the United States District Court for the Southern District of New York, which includes Manhattan. Before that, he was a prosecutor in Manhattan when Rudolph W. Giuliani was the United States attorney there. He and his son, Marc, are advisers to Mr. Giuliani’s presidential campaign.
But Mr. Mukasey is not viewed as a political partisan, which has troubled conservatives, many of whom were hoping the president would select Theodore B. Olson, the former solicitor general, as his nominee. Mr. Olson seemed to be moving to the top of the president’s short list last week until Senator Harry Reid, the Democratic leader, said Mr. Olson could not be confirmed.
Over the weekend, the White House appeared to be floating Mr. Mukasy’s name with conservatives. A sign that he would pass muster with them came Saturday night, when William Kristol, the editor of The Weekly Standard, a conservative magazine, endorsed Mr. Mukasey.
In 1993, Mr. Mukasey presided over the trial of Omar Abdel Rahman, the so-called Blind Sheik, whom he sentenced to life in prison for his role in a plot to blow up New York landmarks and tunnels. Mr. Mukasey had a reputation for decisions that were largely supportive of law enforcement that often brought criticism from civil-liberty advocates.
He has spoken in support of provisions of the Patriot Act, and last month wrote an op-ed piece in The Wall Street Journal on “the inadequacy of the current approach to terrorism prosecutions,” a view that the Bush administration has expressed.
Still, he has garnered praise in some surprising quarters. Glenn Greenwald, a frequent critic of the administration who writes about legal issues for Salon.com, assessed Mr. Mukasey’s part in the Padilla case in an article over the weekend and praised him as “very smart and independent, not part of the Bush circle.”