Power of Attorney

"History doesn't come with a musical score to tell you when the dramatic moments are arriving — you've got to figure that out yourself."

I'm sitting with Michael Mukasey in his office at the tony Manhattan law firm of Debevoise & Plimpton as he utters that line, and although he's referring to world events in our turbulent age, it could as easily refer to his own eventful life in the public eye.

It has been only a few short years since his time as Attorney General of the United States under George W. Bush and before that, as chief judge of Manhattan's federal courts — the only observant Jew ever to hold either post. And in this age of global Islamic terrorism, those positions brought him to the center of the heated debates that have deeply divided America along lines of red and blue.

Knowing something of Mr. Mukasey's record of accomplishment, it's hard for me not to feel some dissonance as I take stock of the avuncular-looking gentleman on the other side of the desk. A 70-something man of conservative dress and mild- mannered demeanor, he could easily be, indeed is, someone's zeidy.

. But he's also the eminent jurist who presided magisterially over the trial of the infamous "blind sheikh," Omar Abdel-Rahman, and nine codefendants for plotting to blow up the United Nations and other New York City landmarks.

After a trial that lasted the better part of a year, Rahman and El Sayyid Nosair, the murderer of Meir Kahane, were sentenced to life in prison. Later, as Attorney General Mukasey, he faced down the fury of liberals in the Senate and the media over the controversial interrogation practice of waterboarding, which critics call torture but proponents say has helped save American lives.

Judge Mukasey's appreciation for both learning and the rule of law began early. Born in 1941, he began first grade at Yeshivah Torah V'Emunah, a small Orthodox Jewish school near the Mukaseys' southeast Bronx home. Then his mother learned of another school, Ramaz, just a subway ride away on Manhattan's Upper East Side, but a universe away from the Bronx educationally and socially.

Michael entered the second grade there and the family hasn't left since. The Mukasey kids, Jessica and Marc, both attended Ramaz and the judge's wife, Susan, was headmistress of its lower school for many years. Rabbi Haskel Lookstein, Ramaz's longtime principal and rabbi of the Kehilath Jeshurun congregation that's affiliated with the school, recalls a Sunday morning father-and-son program for which the Mukaseys would travel in from the Bronx, which began with the Shacharis morning prayers, followed by breakfast and gym time.

Michael, the rabbi says diplomatically, "was better at praying than he was at basketball."

The elder Mukasey immigrated to these shores in 1921 from a small town near Baranovich in Belarus. When I wonder about the unusual family surname, which sounds Irish enough to be followed by "Bar and Grill," the judge explains that in the old country it was pronounced Mukashay, with emphasis on the last syllable, and meant something like "flour grinder" in either Russian or Polish.

Trained as a pharmacist but unable to get licensed here, Michael's father ended up in a series of successive business ventures, each of which, the judge says, "was slightly less successful than the one before it. He opened hand laundries, and later a candy store, which, of course, I enjoyed, because I got to play with the toys in the back.

"My parents did, however, own the 16-family apartment building that we lived in, which threw off income that enabled us to get by. It was right next to the elevated train that ran along Westchester Avenue, which meant conversations got periodically interrupted depending on how frequently the trains were running and whether the windows were open or closed."

Mr. Mukasey is quick to name Rabbi Solomon Berl as one of his early life influences. The Mukaseys attended his shul, the Young Israel of Bronx Gardens, and "although there weren't any gardens in sight, Rabbi Berl was a very effective speaker and I loved listening to his sermons. To the extent I know anything about public speaking, I learned it watching him," he adds.

He also fondly recalls various teachers at Ramaz whose classes he enjoyed, easily ticking off their names and the subjects they taught. One, a Mr. Neiman, was a superb religious studies teacher with a no-nonsense attitude; when one kid in Bible class piped up with a "how do you know?" challenge, Mr. Neiman replied matter-of-factly, "I was there."

But it was a fleeting incident in the middle of one wintery Bronx night that taught Michael more about the value of learning than anything he learned in the classroom.

"One night, we woke up to find that the stores adjacent to our apartment building were on fire. It was very scary to look out and see that the roofs were just one sheet of flame. The firemen were going through our building, getting everybody out and we too put our coats on and went to stand across the street.

"All of a sudden, I see my father run back across the street, across the police line, past the firemen and back into the building. A few tense minutes later, he emerged, clutching the schoolbooks my sister and I were going to need for school the next day. He didn't know what was going to happen to our home, but regardless, the one thing he knew was that we were going to go to school.

"I didn't think about the episode much at the time, but later I realized that it made an indelible impression."

IN THE GENES

From Ramaz it was on to Columbia College, where Michael wrote editorials for the campus paper, doing the expository writing he still enjoys — in contrast to creative writing, which, he readily admits, "I can't do to save my life."

It was also during his time at Columbia that he began a rightward progression in his political orientation, precipitated by the 1963 Cuban missile crisis.

Upon graduating Yale Law School in 1967, Mukasey practiced privately for five years and then joined the United States Attorney's office in Manhattan, where he developed a friendship with another young prosecutor on staff, Rudy Giuliani. In his memoirs, Giuliani writes of rehearsing with his friend Mukasey the cross-examination of Brooklyn congressman Bert Podell, who was on trial for corruption. Giuliani recalled that "cross-examining Mukasey was much more difficult than cross-examining Podell."

The Mukasey- Giuliani connection has continued through the years: The two were later law partners at the Manhattan firm of Patterson Belknap, and Michael's son, Marc, is now a partner at Bracewell & Giuliani, the former mayor's current firm.

Both the senior and junior Mukaseys also advised Giuliani on legal matters during his unsuccessful 2008 presidential bid.

In 1988, after a decade at Patterson Belknap, Mr. Mukasey was nominated by Ronald Reagan for a federal judgeship in New York's Southern District, possibly the country's most prestigious judicial posting. He spent a total of 18 years on the bench, the last six of them as the district's chief judge, earning high plaudits from both prosecutors and defense attorneys for his fairness and high level of preparation for the cases that came before him.

Andrew Patel, a defense lawyer who was on the losing side in the 1995 "blind sheikh" case, later described his "enormous respect" for Judge Mukasey, deriving from the latter's "sense of fairness and due process [which is] more than intellectual. It's really down to the genetic level. It's in his DNA."

Indeed, the judge shares with me that "one of the two or three nicest things anyone's ever said to me" was about his handling of that case — and it came from Agudath Israel's legendary president, Rabbi Moshe Sherer.

"We were together at the ceremonial swearing-in of Rudy Giuliani at City Hall, and I had never met Rabbi Sherer before. I'll never forget how we were talking about the trial of the blind sheikh and he said to me, 'The way you ran that case was a kiddush Hashem [sanctification of the Divine].' "

Not everyone, however, was equally convinced of Mukasey's impartiality: One defendant in the case filed an appeal demanding the judge's removal on the basis that his shul membership and ties to Israel prejudiced him against Muslims.

The irony is that Mukasey, unlike some Jewish judges, made a point of not being active in Jewish organizations while serving on the bench. Former federal prosecutor Baruch Weiss recalls that the only indication of Mukasey's Judaism in the courtroom was that "he knew how to pronounce my name, unlike a lot of other judges."

For his part, the judge refused to step aside voluntarily, writing in his opinion on the case that claims of bias based on Jewishness would "disqualify not only an obscure district judge such as the author of this opinion, but also Justices Brandeis and Frankfurter... each having been both a Jew and a Zionist."

The judges who heard the defendant's appeal agreed with Mukasey, dismissing any concerns about his objectivity as "utterly irrelevant."

Another high-profile terrorism case that landed in Mukasey's courtroom was that of Jose Padilla, an American citizen accused of building a "dirty bomb" nuclear device in collaboration with al- Qaeda.

The government held Padilla in a military brig for three years without charging him with a crime, and in a seminal 2003 ruling, Judge Mukasey affirmed the government's right to do so. Back in the Spotlight At the same time, however, he also ruled that Padilla had a right to see his attorneys, even if it would undermine the government's ability to interrogate him.

BACK IN THE SPOTLIGHT

Judge Mukasey would have preferred to leave his jurisprudence behind in the courtroom, but once death threats were made against him following the conviction of Sheikh Rahman, a security detail of federal marshals became an ever-present feature of Mukasey family life.

For over a decade, two marshals were stationed right outside Susan Mukasey's office at Ramaz throughout the workday and another attended Kehilath Jeshurun's services every Sabbath morning.

Well-known New York defense attorney Charles Stillman recalled seeing the judge walking on Park Avenue to shul one Shabbos morning: "I made a beeline toward my friend to say hello and suddenly two huge guys — marshals — stepped up. The sacrifice he made for his country was to give up his privacy and give up his peace. We owe him for that."

Mukasey himself downplays the matter, offering that the "security concerns are something you get used to, like a mask that you put on and eventually you find that your face grows to fit. It does shape your private life, however; Susan and I were never able to talk in the car because we were always sitting with other people."

The judge pauses, adding puckishly, "On the other hand, we never had to worry about getting a cab."

In the fall of 2006, Judge Mukasey retired from the judiciary, rejoining the Patterson Belknap firm as a partner.

"My wife," he explains, "was then the headmistress of Ramaz but she didn't want to work forever, and I felt that since my family had helped me to stay in government service for these many years, it was about time for me to do my part to support them by going into the private sector. I was also about to turn 65, and if you're going to do anything and still expect to be taken seriously, you've got to do it at a maximum by that age."

But it took exactly one year for Mr. Mukasey to be back in the glare of the national spotlight, when President George W. Bush invited him to replace Alberto Gonzalez as head of the Justice Department.

This wasn't the first time the judge's name had been floated for a position of this prominence: Back in 2003, New York's Senator Charles Schumer, a liberal Democrat, had named Mukasey as someone he could support for a seat on the Supreme Court.

"On one of the Sunday news shows," the judge says, "Schumer announced that he was going to vote against John Roberts's nomination, but not, mind you, because the latter was a Republican. Why, he said, there were a number of Republicans he could support, and he proceeded to rattle off a bunch of names, including mine. What all these people shared, of course, was that none stood a snowball's chance in purgatory of actually being nominated. But my mother-in-law certainly enjoyed hearing my name come up."

But being nominated for the attorney general's post by President Bush was the easy part. The confirmation process was anything but smooth sailing, despite expressions of support from public figures like Mary Jo White, the US Attorney for Manhattan and a Clinton appointee, who said Mukasey would bring "instantaneous institutional respect" to the Justice Department "because of how he is, who he is, and what he is."

Nevertheless, the poisoned political atmosphere during Mr. Bush's time in office made it impossible for someone with strongly conservative views on national security matters to achieve easy confirmation.

Five leading Democratic senators announced their intention to oppose Mr. Mukasey over his stance on what they called "torture," and even getting the approval of the Senate Judiciary Committee so that the nomination could go to the full Senate for a vote was not assured. Committee chairman Patrick Leahy sent Judge Mukasey a letter stating that he and his Democratic peers were "deeply troubled by your refusal to state unequivocally that waterboarding is illegal during your confirmation hearing...."

(Waterboarding is a form of interrogation in which water is poured over a rag covering the prisoner's face, causing him to experience the sensation of drowning.)

For his part, Mukasey says, "I wasn't going to take a position on waterboarding because I wasn't about to pass judgment on something I didn't know anything about."

Ultimately, the Judiciary Committee endorsed his nomination by an 11-8 vote, and the Senate confirmed him by a 53-40 margin, the narrowest for an attorney general in more than a half-century.

NO NONSENSE

What was it like being the outsider, and a quintessential New Yorker to boot, in an inner circle comprised largely of George W. Bush's "Texas mafia"?

"I didn't feel like an outsider," says Mukasey. "I was made to feel very welcome, although, of course, the experience was very new to me. I made it clear from the outset that administration wasn't my long suit, and it helped that there were people in the department who were good at that. Part of my deal was that I would have veto power over who filled top positions and I chose Mark Phillips, a wonderful, brilliant guy who had also been a federal judge, as my deputy."

I ask Mukasey about George Bush as a person and as a president, and he waxes effusive on both scores. "He was a voracious reader. Every time you sat down to a meal with him, the first thing he'd want to know is what are you reading, and do you like it or not, and why. He and Karl Rove used to compete on who could finish more books.

"He was also just terrific at running things, very smart, with absolutely no tolerance for nonsense. The last thing in the world I'd ever want to do is come to a meeting with him unprepared, because he'd cut people to ribbons. I remember one meeting where there were a lot of very substantial people in the room (I don't include myself among them), all of whom were there — so they thought — to ratify a decision that the president had reached in advance. The president walked in, and after the conversation went on for maybe 90 seconds to two minutes, he asked three questions. The decision wound up being 180 degrees the opposite from the way it had started out, based on the answers to those three questions he'd asked. That's not a stupid man."

In his own relationship with President Bush, Mukasey says he always found him very down-to earth and forthcoming. "The first time I met him was in the elevator on the way up to his office for my interview. He said to me, 'Well, you're about to have a job interview with the president of the United States — are you nervous?' That, of course is a very disarming thing to say, and it really helped me relax.

"During the interview, my religious observance was not something that he was concerned with. He did want to know about my background and I remember him liking the fact that my father was an immigrant, but that's as far as it went."

The waterboarding controversy continued to vex Mr. Mukasey's tenure as attorney general. At his confirmation hearing, he had agreed to read the legal memos that Justice Department attorneys had written in support of the legality of the technique and reach his own decision on the matter. But upon arriving at Justice and learning that the technique had been used on just three detainees and then abandoned, he decided that there was no reason to take a position on a matter that was moot.

But then, with a scheduled appearance at an oversight hearing on Capitol Hill at which the waterboarding issue was certain to arise, the question became whether to tell the Judiciary Committee beforehand that he wasn't going to take a position. He decided to write a letter the day before the hearing candidly informing the committee he wouldn't be opining on the legality of waterboarding.

"I remember someone at the White House saying, 'Don't do that, it's a rookie mistake, because now they'll pounce on you.' But my reaction was, 'That's okay. I am a rookie, so I might as well make a rookie mistake.'

"Sure enough, I endured an intense grilling by the Senate Judiciary Committee. But afterward, I received one of the highest compliments I've ever been given when, commenting on the hearing, the president put his arm around my shoulder and told me I had real guts (although he put it a bit more strongly)."

NOT THE FAINTEST IDEA

Since his departure from the national stage with Barack Obama's election in the fall of 2009, Mr. Mukasey has maintained an unusually high profile for a former attorney general, seeming at times like a person possessed. In a series of opinion pieces in the Wall Street Journal and elsewhere and in public appearances, he has spoken out on a range of issues of national import and has been a clear and compelling voice of opposition to many of the Obama administration's policies.

What is it that's bubbling under the placid exterior of Michael Mukasey?

"What's bubbling is a lot of concern about where this country is headed. As a judge and attorney general, I couldn't really speak about public issues and whatever I did say had to be consistent with the point of view of the administration that I served. I had to be careful in what I said because it was consequential. I try to be careful in what I say now too, but I feel that if I have any authority as a former government official, I want to use that for constructive purposes rather than just sit on it."

In pinpointing what has gone wrong these last six years, Mr. Mukasey says it comes down to the worldview of the person who heads the current administration, "which is essentially the worldview of the '60s counterculture activist Saul Alinsky, coupled with a real lack of understanding of what it means to govern. There's a splendid moment that you can see online — terrifying, actually, but very illustrative — that took place on President Obama's second day in office, when he signed the order closing Guantanamo. He staggers through a campaign, and not the faintest idea of reading of the order, signs it with a great flourish, and then he says, 'Do we have another order here saying what we're going to do with these people?' And a voice off-camera belonging to Greg Craig, the White House counsel, says, 'Well, we're going to have procedures, Mr. President.' Whereupon, Obama looks very earnestly at the camera and says, 'We're going to have procedures.'

"He didn't have the faintest idea of how how the government really worked — and he didn't particularly care. He seemed to think that when you utter the words, that's the reality, and his concern with other points of view, ideas, and other versions of reality lasts about as long as the applause following the line that he utters. After that, it's of no interest. The phrase 'amateur hour' to describe this White House has been used by more than one person from more than one party."

Shortly before my visit with the judge at the offices of Debevoise, I'd had an opportunity to observe him in a far different setting, at a dinner at an upscale Boro Park, Brooklyn eatery. He was the featured speaker before an exclusively Orthodox audience. After painting a rather gloomy picture of the threat Islamic fundamentalism poses to America, Israel, and the world, he noted that there are hopeful things happening too, but that the Obama administration hasn't capitalized on them.

To illustrate, he spoke of his recent trip to Cairo, where he visited with the grand imam of Al-Azhar University, the Muslim world's leading seat of religious studies.

"The imam's got his own unsavory past, but now he's singing a different tune. Egyptian president Al-Sisi got up at Al- Azhar and said, 'We've got to reform this religion,' calling on this guy in particular and saying, in effect, 'We're waiting for you.' The imam delivered that message in Cairo and even took it to Mecca. Talk about guts — I wouldn't want to write a life insurance policy on this fellow. Sisi and the head of Al-Azhar are both singing off the same music sheet — that's a remarkably hopeful thing, if only the leaders of this country would pay attention. But they haven't; in fact, they've snubbed Egypt, denying it weaponry and sending it Apache helicopters that are missing essential parts, so the helicopters are grounded."

Upon stepping down from the bench nine years ago, Judge Mukasey was asked to name a court decision by which he wanted to be remembered. With classic understated wit, he replied "I'm not in any big hurry to be remembered." Still, five years after his "retirement" from public life, his active role in the national conversation ensures that his contributions to the country he loves are in no danger of being forgotten.

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Eytan Kobre is an attorney practicing in Brooklyn, New York. He studied at the Yeshiva of Staten Island and Yeshiva Shaar HaTorah. A graduate of the Fordham University School of Law, he previously practiced law with two Manhattan firms and served for several years as associate general counsel at Agudath Israel of America. He is an editor at Mishpacha magazine, where this first appeared.