President Bush’s announcement of the name of the person who would replace Attorney General Alberto Gonzales was eagerly anticipated by many in Washington. Gonzales, caricatured as inept and bumbling by critics of the President, had decided in August that he wouldn’t continue in his designated role as Washington’s whipping boy du jour.

In the end the President’s choice of Judge Michael Mukasey wasn’t a surprise as much as it was a stinging acknowledgement of the complete political breakdown that has taken place in Washington – a breakdown that increasingly is trampling all over the executive’s appointment power. If after 2008 the Democrats win the White House will they regret the precedent that they are helping to establish?

Judge Michael Mukasey by all accounts is a seasoned law and order conservative. He was widely admired as a judge of integrity and independence during the nearly 20 years he was on the bench. His rulings demonstrated that he understands that criminals must be held responsible for their actions, and his reserved style reveals a high regard for he rule of law. He has first hand experience dealing with the international terrorist threat – first as a trial judge of Omar Abdel Rahman, the so called “Blind Sheik” who masterminded the first attack on the World Trade Center and of convicted Al-Qaeda conspirator Jose Padilla. He is very likely to command the respect of the men and women who work at the Department of Justice.

These admirable qualities are commendable and in other contexts would go without any need for qualification. However it is precisely the circumstances of his selection that merit comment. Judge Mukasey’s selection signals a retreat from the commitment of the President to retain full authority over the direction of his own administration as well as a signature example of over-reach on the part of Congress – in particular Senate Majority Leader Harry Reid – in encroaching on executive duties.

Nominations and appointments are a key power of the President; in fact it is one of the crucial ingredients for a successful presidency. Being able to pick the men and women who will carry out the President’s agenda is vital. Yet imagine a world where that choice didn’t exist or was severely compromised. Imagine a world where the opposition party even went so far as to choose the President’s Chief of Staff. While extreme – since this is not a Senate confirmed position – this is the basic principle at stake.

In the first place, seeing to it that the President retains the prerogatives of the executive is a basic responsibility of the Bush Administration or of any president. One key refrain of Governor Bush and his running mate Dick Cheney during the campaign of 2000 was their commitment to ensure that the power and prestige of the President would not be diminished on their watch. Coming in the wake of the execrable performance of William Jefferson Clinton as president, such a pledge likely resonated with many independents and most Republicans.

Unfortunately the process leading to the nomination of Judge Mukasey is not a sterling example of this commitment. Although not for the first time, Senate Democrats made it very clear that with the Attorney General vacancy they not only would exercise their lawful “advice and consent” role, they went further and took on the nomination role as well. Yet instead of specifically rejecting that role by the Senate it appears that by nominating Judge Mukasey – the choice of prominent Senate Democrats – the White House caved.

Whether responding as political realists or reaching out in an act of comity, sublimating the administration’s priorities for those of the United States Senate is clearly not what the framers intended. It defies a basic principle of executive authority – being energetic – as contemplated by the founders. Alexander Hamilton explains in Federalist No. 70, “Taking it for granted, therefore, that all men of sense will agree in the necessity of an energetic Executive, it will only remain to inquire, what are the ingredients which constitute this energy? ……. The ingredients which constitute energy in the Executive are, first, unity;…..”

Note that unity is listed first. And what is more critical to maintaining unity than holding a tight leash on the appointment power. Ensuring a potential member of the executive branch will promote the administration’s agenda is more difficult if that individual is beholden to those outside the executive authority. Moreover, diffusing the executive authority is contrary to the framers intent and to the effective operation of our republican system of government.

Thus while acquiescing to the demands of his Senate critics may appear casually to be a prudent step in light of the President’s lack of popular support in the short run, in the long run it is a capitulation of a major tool of the executive power. And it will make future encroachments on this power more likely.

But let’s not forget the co-conspirators in this process who sit over in the United States Congress. It’s true that there is a famous saying that every United States Senator wakes up in the morning and looks in the mirror and sees the next President of the United States, but mirror or no, this is no excuse for misappropriating presidential authority. Continued...