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White House Took Care in Vetting Mukasey

MELISSA BLOCK, host:

And NPR legal affairs correspondent Nina Totenberg joins us to talk about where this nomination goes from here.

Nina, what are you hearing from the White House about a timeline for this nomination?

NINA TOTENBERG: Well, the White House is telling people that it would like to have a confirmation hearing begin in about two weeks. And to spur the Democrats to hurry up, the president today appointed Peter Keisler, the assistant attorney general for the civil division, as the acting attorney general so that the current acting attorney general, Paul Clement - sound like musical chairs because it is - can go back to his day job of being the solicitor general and arguing cases before the Supreme Court.

Now, Peter Keisler was planning to step down from the Justice Department. And he's widely seen as more confrontational than Clement, so the White House apparently thinks that this temporary appointment will spur the Democrats into moving more quickly on Mukasey.

Still, two weeks seems a little unrealistic. The nomination hasn't even been formally sent to the Hill yet.

BLOCK: And we heard in Brian Naylor's piece there about a fight over documents. Where is that going to end up, do you think?

TOTENBERG: Well, it depends whether the White House will move at all. I suspect the president won't change his position on documents involving the mass firing of U.S. attorneys. But there could be more flexibility on other long-standing Judiciary Committee demands, for example, for the legal opinions justifying the NSA Warrantless Surveillance Program, or the legal opinions justifying coercive questioning of detainees.

Those kinds of things are the direct concerns of the legislative branch. And my sense in talking to the Democrats on the Judiciary Committee and staff aides is that the White House is going to have to produce some of the stuff, but hardly all of it. As one staffer put it to me: They don't have to give it all to us, but they have to show us a little leg.

BLOCK: Nina, this - if you look at how this nomination process has gone, it's been pretty unusual. Names were floated and they were shut down by Democrats, and when Judge Michael Mukasey's name came up, it was from Democratic Senator Charles Schumer.

TOTENBERG: Oh, that's true. After three weeks of the Democrats basically shooting down the trial balloons, the White House finally went looking for an outsider, someone not known to the Washington establishment on the left to the right, someone so unknown to most conservatives that over the weekend, Melissa, sources say a number of conservative legal activists - not members of Congress - were invited into the White House to talk to Judge Mukasey to ask him questions in their area of expertise. That seems to have satisfied the ones that I talked to particularly those who wanted to make sure that he was hard-line enough on national security questions.

My sense is that for social conservatives, there's still some skepticism, but the line the White House took with these worriers was, look, there's only a little more than a year left in this administration, give us a break.

BLOCK: Have you found anyone who has anything bad to say about Michael Mukasey on the left or on the right?

TOTENBERG: Absolutely not. He's incredibly well regarded by prosecutors and defense attorneys alike, for example. All the people that we've talked to today who know him say he's smart, fair, efficient, on top of things in his courtroom, and he's highly regarded for his integrity and decency.

BLOCK: Do you think there are any downsides to his nomination?

TOTENBERG: There are always downsides for an outsider in a circumstance like this, especially where there's only a little more than a year left. And the task is huge: to revitalize a demoralized and discredited Justice Department. And first, he doesn't know the players either at the White House or on Capitol Hill. He doesn't know the players in the department - the career lawyers, the ones who've left. He doesn't have a lot to offer people when he's recruiting to fill the huge number of open positions at the top of the department. Remember, the top three slots and most of the assistant attorney general slots are vacant for all practical purposes, with the confirmed leaders having departed almost en masse.

BLOCK: Okay, Nina. Thanks very much.

TOTENBERG: Thank you, Melissa.

BLOCK: It's NPR's Nina Totenberg. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

As special correspondent and guest host of NPR's news programs, Melissa Block brings her signature combination of warmth and incisive reporting. Her work over the decades has earned her journalism's highest honors, and has made her one of NPR's most familiar and beloved voices.
Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.