That last line by Judge Mukasey just cuts me to the bone.  I think of all the times that federal judges responded in this way to what they perceived as yet another whiny complaint by a defendant that they got a boo boo because some federal agent smacked them around a bit.  I’m sure other parts of this story will stick out to other people, but this is the one that gets me.

Do I write about this story to condemn Judge Mukasey?  No, I’m afraid I don’t.  While this is hardly a compliment to Judge Mukasey’s sensitivity as a human being to the suffering inflicted on others, I see this attitude as systemic. 

When I first wrote about Judge Mukasey being the nominee for Attorney General, a few days before President Bush announced it to the world (that’s right; as my lovely and talented daughter often says, I know things), I included this phrase:  Third, he was definite federal judge material, meant in that slightly sarcastic yet pejorative sense. 

My cryptic reference now comes back to haunt me.  While there are some notable exceptions, most of the federal bench is warmed by big picture people from Biglaw backgrounds who cop the attitude that such mundane matters as defendant-beatings are beneath their sphere of concern.  Similarly, there is such a strong affinity for Order that their vision of the need for law, the protection of personal freedom, is badly skewed.  In the struggle between order and freedom, order wins every time.  That’s just federal court.

Is Michael Mukasey that rare exception, a Don Quixote tilting at the windmills of federal callousness?  Nope.  He’s a fairly mainstream federal judge.  Unlike John Paul Stevens, who father (described as a Warren Harding Republican) was arrested, tried and convicted of a crime, only to be reversed on appeal, he’s never suffered a personal “misfire” of the legal system that left him with an appreciation of what it’s like to be beaten by agents on your way to court.

Going a little off topic, perhaps the best explanation for his facial insensitivity is that federal courts (and their judges) are a poor choice for such mundane proceedings as criminal prosecutions (or material witness warrants, as a substitute for criminal prosecutions).  This is nuts and bolts work, and just not the type of stuff that most federal judges want to spend their time on.  Can you imagine, for example, Judge Mukasey telling Osama Awadallah to come into his robing room and show him the bruises?  Oddly, I can see Justice Stevens doing that, though not his predecessor, William O. Douglas.

While this affair certainly doesn’t elevate Judge Mukasey as a champion of civil liberties or a doubter of the serious consequences of the Government’s abuse of its might, I find it hard to tar and feather him for it either.  Again, did you expect President George W. Bush to go begging to Ramsey Clark?  Then you hope for the best of the potential universe of candidates, not the one person on the face of the earth who is most perfect to you.  As much as Jesse was absolutely right to bring what happened to Osama Awadallah to this country’s attention, I see it more as an indictment of the general attitude of the federal courts than Judge Mukasey alone.  And it’s a shame that it could happen in America.