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After just 19 months on the 3rd U.S. Circuit Court of Appeals, Michael Chertoff said yes when President Bush asked him to head the Department of Homeland Security in Washington. Chertoff, 51, is a former federal prosecutor from New Jersey who led the criminal division of the U.S. Justice Department for the three years prior to his judicial appointment. Bush announced the Cabinet-level nomination at a news conference Tuesday. “Mike has shown a deep commitment to the cause of justice and an unwavering determination to protect the American people,” Bush said. While at the Justice Department, Chertoff testified before Congress on the Bush administration’s new counterterrorism policies after Sept. 11 and answered questions about his agency’s legal response to the threat of terrorism. Before leaving that post in 2003, he argued the government’s case in an appeal involving terrorism suspect Zacarias Moussaoui, the only person charged in connection with in the Sept. 11 attacks. Both Republicans and Democrats overwhelmingly supported Chertoff’s appointment to the 3rd Circuit Court less than two years ago, confirming his nomination by an 88-1 vote. Since joining the court in June 2003, Chertoff has earned a reputation among judges and appellate lawyers as a thoughtful jurist who asks some tough questions during oral arguments and writes well-reasoned opinions. But it appears the war on terror was not far from his thoughts. In 2003, Chertoff spoke at a judicial conference in Philadelphia about some of the legal and national security issues surrounding the war on terror. He told audience members that it might be time to find a “more universal approach” to handling enemy combatants in custody, according to The Washington Post. Last summer Chertoff called on Congress and the executive branch to construct a new “legal architecture” for the war on terror in an op-ed article published by The Wall Street Journal. This construction project is not one that should be expected of the courts, Chertoff noted. “Urgently, we need to spell out what the government can do when it discovers through intelligence that a terrorist is in this country,” Chertoff wrote in the June 17, 2004, piece. These laws, yet-to-be-written, should balance new national security needs with the country’s civil libertarian values, he reasoned. “To be sure,” Chertoff wrote, “one of America’s most cherished values is that individual liberty must be protected against the power of the state. … At the same time, we are fighting for survival against a dangerous enemy. We cannot forget that we are at war, one our enemy declares is a fight to the death. We can win it only if we do not force our forces to fight in a legal fog, constantly speculating and litigating piecemeal about what the law might be.” In Philadelphia Tuesday, 3rd Circuit Chief Judge Anthony J. Scirica called Chertoff’s nomination both a “tremendous appointment and a tremendous loss to the federal judiciary.” “He is an extraordinary judge — brilliant, scholarly, thoughtful, balanced and a wonderful colleague,” Scirica said in an interview. “He’s so talented, I can understand why the president selected him for this important position” Chertoff’s administrative experience as U.S. Attorney for the District of New Jersey, one of the nation’s largest federal prosecutor’s offices, would serve him well in his appointment, Scirica said. Carl M. Buchholz, a Philadelphia attorney who worked in the White House Office of Homeland Security under Tom Ridge, called Chertoff an “excellent choice” for the job. “I know him by reputation,” Buchholz said from his office at Blank Rome. “He knows the people; he has the trust of the president; and he knows the magnitude of the task at hand.” Howard Bashman, an appellate attorney in Fort Washington, Pa., said Chertoff’s nomination was a surprise considering he so recently joined the bench. “It’s a loss for the 3rd Circuit but a gain for the nation as a whole,” Bashman said, noting the judge’s clear and intelligent opinions. “He would have been an asset for the court for many years to come.” Chertoff is a 1978 graduate of Harvard Law School. His legal career began in the federal courts as a law clerk for 2nd Circuit Judge Murray Gurfein. He then clerked for U.S. Supreme Court Justice William J. Brennan Jr. before entering private practice at Latham & Watkins in Newark, N.J. Chertoff’s decade as a federal prosecutor began in 1983 when Rudolph Giuliani — then a federal prosecutor in the Southern District of New York — hired him. In that job, Chertoff led the prosecution team that won the 1986 convictions of several members of the “Mafia Commission” that controlled the cement industry in the city. He later became First Assistant U.S. Attorney in the District of New Jersey. When Samuel A. Alito Jr. — then Chertoff’s boss — was nominated to the 3rd Circuit in 1990, Chertoff was nominated to replace him as New Jersey’s U.S. Attorney. Chertoff stayed in the job until 1994, making him one of the last federal prosecutors replaced by the Clinton administration. Back in private practice in 1994, Chertoff worked as special counsel for the U.S. Senate committee heading the Whitewater investigation, questioning White House aides about Bill and Hillary Rodham Clinton’s involvement in the notorious land deal. (Sen. Clinton was the only senator to vote against Chertoff’s judicial appointment in 2003.) In 2000, Chertoff worked as pro bono counsel to a New Jersey legislative probe of racial profiling by state police. He was appointed to lead the DOJ’s criminal division in 2001. New Jersey Sens. Jon Corzine and Frank Lautenberg and other Democrats praised Bush’s nomination Tuesday. Scott Christie, a former U.S. Assistant Attorney who worked for Chertoff, told The Associated Press that his former boss “works and develops consensus in what he does and politics takes a backseat to doing the right thing for him. “This speaks to the fact that he’s recognized by both parties as a consummate professional first,” Christie said. The American Civil Liberties Union put out a statement calling Chertoff’s nomination “troublesome.” Noting his involvement in developing the U.S. Patriot Act as well as other actions the Justice Department took after Sept. 11, the ACLU’s chief legislative counsel said his group was “troubled” that Chertoff’s record “suggests he sees the Bill of Rights as an obstacle to national security, rather than a guidebook for how to do security properly.” Cabinet secretaries may not concurrently hold offices in the executive and judicial branches, so Chertoff would have to resign his judgeship following his Senate confirmation. Scirica said that Chertoff wouldn’t necessarily leave his pending caseload up to the decisions of the appellate judges with whom he heard each case. “He’s very conscientious, and I’m sure if he can complete his work, he will do so,” Scirica said. Chertoff is Bush’s second nominee to replace the country’s first secretary of homeland security, Tom Ridge, who resigned Nov. 30. Bernard Kerik, a former New York City police commissioner, withdrew from consideration for the position after questions were raised about the immigration status of his family’s nanny. Chertoff was on a list of possible candidates when Ridge resigned but wasn’t approached because he had been on the bench just a year and it was believed he would want to stay, an administration official told The Associated Press. After Kerik withdrew and the White House reached out to him, Chertoff expressed interest. If the Senate confirms Chertoff, his seat would be the only vacancy on the 3rd Circuit bench. Federal judges are appointed for life. The Associated Press contributed to this article.

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