Even the best judges get knuckle-rapped by higher courts for not upholding a defendant's rights, as former judge Michael Mukasey knows. Such past corrective experiences would serve him well as US attorney general. He can correct America's mistakes in dealing with terror suspects.
The nation is ready for someone to lead a better, bipartisan approach in finding a balance between the conflicting demands for secrecy in national security against the rights of even the most dangerous Al Qaeda fighters. Mr. Mukasey fits the bill by his assertive drive for security against terrorism, tempered by a passion for the Constitution.
President Bush and his previous attorneys general may have won the day in battles with Congress over passage of new anti-terror laws that have, indeed, kept America safer. But the administration's record in the courts (evading them), in Iraq (Abu Ghraib), and in detention centers (CIA prisons and Guantánamo) have left a worldwide impression of a US violating its own civil liberties in order to defend liberty. That needs to change.
The Justice Department's record of mistakes, and Democratic control of the Senate, forced Mr. Bush to avoid nominating someone close to his Republican circle. Instead, the lame-duck president wisely picked Mukasey, who's admired by members of both parties for his work as a tough federal prosecutor and as chief justice of the federal district court in New York City.
Indeed, Mukasey presided over the most famous terror case to be tried before the Sept. 11, 2001, attacks. The case, which put the mastermind of the 1993 bombings of the World Trade Center away for life, showed that the courts are capable of handling terror cases if careful accommodations are made for some secrecy in national-security intelligence.
Mukasey also showed balance and burnished his credibility in the case of American citizen Jose Padilla. He argued against the Justice Department's claim that this Al Qaeda supporter should not have a lawyer. But he did support Mr. Padilla's detention as an "enemy combatant."
Such astute legal juggling will be needed for other, ongoing legal questions, such as domestic spying, the suspension of habeas corpus in terror cases (now before the Supreme Court), US adherence to the Geneva Convention, and definitions of torture. If one or two Democratic senators hold up Mukasey's nomination in order to extract concessions from the Bush administration on other matters, they will delay the possible good work that he can do at Justice.
Also needing quick attention is basic management of the Justice Department. Bungled leadership by the previous attorney general, Alberto Gonzales, has left staff discouraged and in need of better direction, especially federal prosecutors after the preelection firing of several of them.
Unlike some judges during his time on the bench, Mukasey did not assert the power of the judiciary simply for the sake of keeping its power over the executive branch. His decisions reflect a case-by-case weighing of society's broader needs and a deference to elected leaders.
Now that he may join the executive branch as the chief law enforcement officer, he can bring credible reassurance that civil liberties and security need not conflict.