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Mukasey Argues Case Before High Court
Legal Times
March 26, 2008
As a former federal judge, Attorney General Michael Mukasey must have grown to appreciate terseness in the lawyers who appeared before him. Mukasey certainly took it to heart when he appeared before the Supreme Court on Tuesday for the first time. His answers to justices' questions were brief, to the point, and seemed to hit the right notes.
Mukasey followed in the footsteps of some but not all of his predecessors in arguing at least one case before the nation's highest court during his or her tenure. And following tradition, he was offered a not-too-taxing case to argue. In United States v. Ressam, it was his job to convince the Court that a law requiring a 10-year minimum sentence for anyone who "carries an explosive" during commission of a felony does not necessarily require that the explosives relate to the crime.
Promising four quick reasons to back up his argument, Mukasey was able to recite three before being interrupted by a question. Chief Justice John Roberts Jr. and Justice Antonin Scalia hit him with far-fetched hypotheticals, but Mukasey handled them comfortably, and did not fall into the trap of telling the justices what they already know -- that the hypos were different from his case. "It is perfectly lawful," Mukasey said, for Congress to impose a 10-year sentence whether or not the explosives found on the defendant related to the crime he or she committed. "It passed a very broad statute."
A small dash of humor spiced up the proceedings -- Mukasey's voice tends toward a monotone -- when he was asked whether the department could promulgate policy guidelines if it appeared the law was being abused. "I think I'd be ideally suited to do that," he responded dryly.
Sixteen minutes into his allotted 30, Mukasey looked up and down the row of justices before him and, hearing no further questions, asked to reserve rebuttal time. Almost as soon as he began, Mukasey's main argument was over.
He answered the rebuttal questions quickly as well, conceding that while the law was valid, "It's not a model of elegant construction."
Word from the department is that unlike some predecessors who have borrowed the morning coat that is customary for government lawyers to wear before the Court, Mukasey rented his. At the counsel table with him were his counselor Kathryn Haun, a former law clerk to Justice Anthony Kennedy, and from the solicitor general's office, criminal law expert Michael Dreeben and assistant Toby Heytens.
Arguing on the other side was Seattle federal public defender Thomas Hillier, who also fielded questions well, though it appeared a majority of justices were not buying his argument that the law should not apply to his client. Hillier was arguing on behalf of Ahmed Ressam, the so-called millennium bomber who was arrested in December 1999 with explosives in the trunk of his car, allegedly on his way to participate in a plot to attack Los Angeles International Airport. But the explosives element covered by the law at issue Tuesday was linked to the charge that Ressam made false statements to customs agents. Hillier argued the explosives had no relationship with the false statements.
Senior reporter Pedro Ruz Gutierrez contributed to this report.
