Frank Bowman of Slate magazine notes the following:
The Constitution conferred on the Senate the power to reject presidential nominees not merely, or even primarily, to keep rank incompetents from federal office. The appointment power is one of the weapons granted Congress in order to protect the political structure and human values enshrined in the Constitution itself from presidential encroachment. If a nominee for attorney general, however smart, sincere, and capable, refuses to disavow torture and espouses an anti-democratic, anti-constitutional doctrine of presidential hegemony and congressional subservience, he should be rejected. If the Senate is foolish enough to ratify the replacement of a bumbling toady with an accomplished apostle of the gospel of executive supremacy, it will deserve every snub this and future presidents inflict. But the rest of us deserve better.
His conclusion, along with that of Jed Rubenfeld (who practiced under him and know his jurisprudence) in today's NYT, is that Judge Mukasey must go.
My thought: there may by be no one who can stand up to this President's imperial view of executive power that he will actually nominate. Perhaps I am informed by my understanding of Episcopal Church polity that power at every level, parish, diocese, and national church is formally divided between clergy and laity. Of course I am also informed by the intent of the Founders themselves: presidential power was never intended to be absolute; just read the list of grievances in the Declaration of Independence for a refresher.
Senators should reject Mukasey as a warning shot and then use the considerable power of the purse to ensure Justice Dept. hands are kept clean when the budget is passed. Let Bush veto it if he wants to. Let's have a real fight about executive power. It's gone too far, and it's time to debate it out in the open, not in undisclosed locations under so-called "top secret" rules.
RFSJ
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