Questions for Mukasey
Nomination
On September 17, 2007, President Bush announced his nomination of Judge Michael Mukasey to be the next Attorney General of the United States. Though he is reported to be a consensus nominee, Judge Mukasey's views warrant scrutiny – particularly with regard to how, as a federal judge, he has balanced the defense of our most basic constitutional rights against national security interests during his time. News reports portray Judge Mukasey as a sober thinking law and order conservative. Little attention has been paid, however, to his civil rights record or to the civil rights implications of his national security rulings.
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Importance of an Independent U.S. Attorney General
As the federal government's chief law enforcement officer and one of the primary guardians of our Constitutional rights, the Attorney General’s central mission is to be the lawyer for the people. Though he or she also serves as the principal legal advisor to the President and other top officials within the executive branch, the Attorney General must balance those demands against their legal obligation to the American people. The Attorney General exercises discretion when faced with insistent demands from the President – a discretion that must be grounded in a deep respect for the rule of law. It is imperative that whoever occupies this position is worthy of the public trust and remains above partisan politics.
Questions for Mukasey
- Politicization. Will you commit to fully cooperating with the Inspector General of the Department of Justice as he investigates the firing of nine U.S. Attorneys by Alberto Gonzales in 2005 and the politicization of the hiring process at the Justice Department, including the impact of this politicization on the Civil Rights Division? Will you ensure that the ongoing investigations by the Justice Department's Inspector General are carried out thoroughly and impartially with the full cooperation of current and former employees? And what will you do to rehabilitate the morale of the civil rights division?
- Voting Rights. In recent years, the Department of Justice has pursued cases that block rather than enhance access to the vote. Will you commit to a program of enforcement that returns the Civil Rights Division to the pursuit of voter access? Given the intimidating effect that criminal fraud prosecutions have on voters in the run up to an election, will you commit to clearly defining the contours of the relationship between the Civil Rights Division and the Criminal Division in the execution of the Department's election monitoring programs? Will you commit to using the NVRA to promote voter registration, using the Voting Rights Act to challenge discriminatory voter identification laws, and interpreting HAVA expansively? Will you commit to increasing, not diminishing, access to the political process for racial, ethnic and language minorities?
- Police Misconduct and Racial Profiling. In recent years, the Department of Justice has all but halted its enforcement of 42 U.S.C. 14141, the statute that allows for civil lawsuits to be brought by the Department of Justice against systematic police misconduct. Will you commit to engage in investigations and bring lawsuits against police departments that reveal a pattern or practice of police misconduct? Will you commit to support for the End Racial Profiling Act (ERPA), which builds on the guidance issued by the Department of Justice in June 2003 to ban the use of racial and ethnic profiling by local, state, and federal law enforcement officials? Will you also commit to implementing a substantive review process to ensure federal compliance with ERPA, including the data collections requirements?
- Employment Discrimination. In recent years, we have seen a decline in the Civil Rights Division's commitment to challenging workplace discrimination. Will you commit to using the Division's statutory authority to effectively combat discrimination in the workplace by reinvigorating enforcement around pattern and practice cases and committing to using the many forms of race-conscious relief already approved by the Supreme Court? Will you also commit to return to the practice, abandoned six years ago, of defending federal affirmative action programs that are under attack?
- Housing Discrimination. Discrimination in the housing market persists unabated with regard to lending and home-owning practices. In the past four years, the total number of cases filed by the Civil Rights Division has decreased by 29 percent, with a particularly drastic decline in the number of cases involving racial discrimination undertaken (43 percent). Will you commit to achieving full and effective enforcement of our nation's fair housing laws by undertaking significantly more pattern or practice cases involving racial or ethnic discrimination in real estate sales, homeowners and renters' insurance, zoning and land use practices, and lending – which includes racial steering and predatory lending?
- Education. The work of the Education Section of the Civil Rights Division, which contributed greatly in past decades to fuel the fire of integration, has stalled in recent years. Will you commit to investigating zero tolerance disciplinary policies, practices that mistakenly categorize minority students as having learning disabilities, and the under-representation of people of color in academically gifted programs for unlawful discrimination? Will you commit to ensuring equal educational opportunity by enforcing existing desegregation decrees designed to integrate the nation’s school systems?
- Detainee Issue. As a federal judge in the Southern District of New York, you approved numerous material witness warrants that, according to the Justice Department's Office of Inspector General report, resulted in a high number of unnecessary detentions of Arab and Muslim immigrants and citizens. As Attorney General, will you commit to having the Justice Department use the material witness warrants only to obtain testimony and not to indefinitely detain suspects without charge?
- Immigration. In recent years, the Justice Department has appointed immigration judges with little or no expertise in immigration law, in service to partisan political interests. Will you commit to complying with civil service rules that require the appointment of immigration judges based on professional qualifications rather than partisanship? And given the current state of the immigration courts, what will you do to guarantee that immigrants receive a fair and impartial hearing in these courts?
