Wednesday, September 19, 2007


So a native and lifelong New York City resident, Michael Mukasey, has been nominated to be US Attorney-General. Assuming he is confirmed, he will be about the tenth New Yorker to be serve in the position. The list includes, as you might expect, a parcel of Wall Street lawyers---and among their ranks, some of the worst men ever to serve in the position.

I’m not sure what James McReynolds, a southerner who had worked on Wall Street for many years, did as AG from 1914 to 1915, but when Woodrow Wilson elevated him to the US Supreme Court, he became, by general consensus, the worst Supreme Court justice of the 20th century: a hidebound reactionary and a crude, racist antisemite who refused to speak to Brandeis in their 20 years on the bench together.

And then of course there’s the Wall Street bond salesman, John Mitchell, who under Nixon did what he could to subvert the constitution and became the first and so far only US AG convicted of a felony. He’d be a shoo-in for the title of worst US AG of all time if the competition wasn’t so stiff: the contenders include Alberto Gonzalez and another lousy appointment by Woodrow Wilson, A. Mitchell Palmer of Palmer Raid infamy. (If I had to vote, I think I’d go for Palmer.)

If there is a theme among the New Yorkers who have served in the position, it is that they have generally been apologists and often architects for the expansion of executive power. In this I would include Robert H. Jackson, an upstate lawyer from Jamestown in the Southern Tier, who served as AG under FDR in 1940-41, before his elevation to the high court. Jackson courageously dissented in the infamous Korematsu decision of 1943, but it should never be forgotten that the single greatest violation of civil liberties in American history, the internment of the west coast Japanese, took place under FDR’s watch. As Greg Robinson has shown, FDR's actions were of a piece with his expansive view of presidential powers (especially presidential powers in wartime.)

None of this bodes particularly well for Mukasey The leading legal question of our time is surely the need to keep the presidency’s burgeoning plenary powers firmly under the rule of law. One doubts, from what I have read about Mukasey, that he is the man to do anything about it.

However, one thing the federal government might think about borrowing from New York State is how we go about choosing the state attorney-general. Our state AG is elected and serves independently, not at the pleasure of the governor. I frankly would like to see all the major US cabinet positions elected popularly, but for no position would it be more important than attorney-general; so much of the controversy surrounding independent prosecutors would thereby be eliminated. (Except of course for investigations of the Justice Department itself.)

The utility of the New York system was recently demonstrated when the NY AG, Andrew Cuomo, in the controversy between Joe Bruno and Elliot Spitzer over the use of state troopers, ruled that Spitzer had indeed misused the troopers. Would an attorney-general appointed by Spitzer (or any other governor) had ruled so swiftly and definitively against his or her boss? It seems unlikely. One of the ways to rein in the power of what is called by some Bush ideologues the “unitary executive” would be to make it less unitary.

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