An Early Hanukkah Gift

The confirmation of Michael Mukasey should have been a slam dunk. Instead, it rolled around the basket for eight weeks, teetered perilously on the rim (when it was almost not recommended out of the Judiciary Committee), and, happily, finally dropped through the hoop.

It should have been a slam dunk because of the quality of the nominee. Senator Whitehouse, a Democrat of Rhode Island, commended Judge Mukasey as "a brilliant lawyer, a distinguished jurist, and a good man." Moreover, his nomination was strongly endorsed by Senator Schumer of New York, a liberal Democrat and a ranking member of the Senate Judiciary Committee, who knew and respected Mr. Mukasey's qualities. The first hearing in the Judiciary Committee turned out to be something of a love fest with senators of both parties relating to the nominee with exceptional respect and admiration.

I was not surprised. I have known Michael Mukasey for almost 60 years, since he first entered the second grade at the Ramaz School. I was his teacher in a Jewish sociology course in his senior year of high school. I was his counselor at camp. In all of this growing period, he demonstrated the same qualities of dignity, integrity, refinement, brilliance, and modesty for which he is known today.

As his rabbi, I was approached by him for advice when, as a federal judge in the First District he was asked to be the presiding justice in the first World Trade Center bombing case in 1993 at the conclusion of which, he sentenced Sheikh Omar Abdel-Rahman to life in prison.

He was told in advance that if he took on the case, no matter what the conclusion would be, he and his wife would have to be guarded for the indefinite future by federal marshals, night and day, every place they went, including in their home. I listened to him, but I couldn't offer him advice except to say that if he declined the case I would certainly understand his reasons, but if he accepted, it would be a great service to our country. Personally, I had little doubt what his decision would be. Mr. Mukasey always was a patriot, a man of great principle, and a person of exceptional courage. That's why the president chose him, why Senator Schumer supported him, and why the Senate Judiciary Committee treated him in its first hearing with such respect. And that's why his confirmation should have been a slam dunk.

So what happened? To understand the opposition to his confirmation, one need only read the first editorial the New York Times published after the judge's nomination. The Times praised him as a good man and an excellent jurist, but it presented a long list of questions which should be asked of him before confirmation. That was the beginning of the battering of Mr. Mukasey. The end was this past Sunday's editorial, "Abdicate and Capitulate," in which the Times bitterly criticized the Democrats for letting Mr. Mukasey be confirmed by 53 votes, when at least 60 would have been needed to "overcome a filibuster."

A filibuster, over a man like Mr. Mukasey? A filibuster for a candidate over a disagreement about waterboarding? As Harvard Law School Professor, Alan Dershowitz, wrote in the Wall Street Journal on November 7, "Michael Mukasey … is absolutely correct, as a matter of constitutional law, that the issue of 'waterboarding' cannot be decided in the abstract. Under prevailing precedents … the court must examine the nature of the governmental interest at stake, and the degree to which the government actions at issue shocked the conscience, and then decide on a case by case basis. In several cases involving actions at least as severe as waterboarding, courts have found no violations of due process."

That Judge Mukasey finally was confirmed is due to the determination of President Bush not to be intimidated by a purely political opposition to a worthy candidate whom everyone respected, and the courage of Senator Schumer to stand firm against fellow Democrats and the press when he was convinced that "Judge Mukasey has demonstrated his fidelity to the rule of law, saying that if he believed the President was violating the law he would resign," as he wrote in a November 6 oped in the New York Times.

In the end, the new attorney general will prove to be good for the president, whom he will serve with loyalty and absolute integrity. He will be good for Mr. Schumer, whose courage will be validated by the actions of a patriotic, principled, public servant who will always be faithful to the rules of the law, and, most of all, good for the American people, whom he will serve with dignity, intelligence, and humility.

Saturday morning, the day after his swearing in ceremony, Michael Mukasey came to our synagogue. We honored him with holding the Torah scroll as we blessed the incoming Hebrew month of Kislev, the month in which the festival of Hanukkah falls. To those assembled, it was symbolic of Mr. Mukasey's lifelong dedication to upholding the law.

As he stood there, holding the Torah, with tears in his eyes, it occurred to me that, in his confirmation as attorney general, the American people have just been given an early Hanukkah gift.

Rabbi Lookstein of Congregation Kehilath Jeshurun is the principal of the Ramaz School in New York City.