Mukasey's ruling focused largely on separation of government powers. He also disagreed with the Justice Department's defense that judges could be included in an executive agency without violating the Constitution, and quoted from Alexander Hamilton's Federalist Papers to drive home his point.
"There is ample room to quarrel with the DOJ's reading of history as it relates to the extra-judicial service of federal judges, but its arguments suffer from more than bad history," Mukasey wrote.
He seems to have come around since then:
Mukasey largely has been silent about the sentencing guidelines since the Supreme Court ruled that, when handing down sentences, judges must consider the guidelines but don't necessarily have to follow them. How strongly he will push the Justice Department's plans for mandatory prison time already has piqued the curiosity of lawyers and legal experts.
"He was one of the judges who tended to follow the guidelines," said Washington defense attorney Michael Horowitz, a member of the Sentencing Commission and a former Justice Department prosecutor who argued cases in Mukasey's courtroom. "As someone who believes in the rule of law, the guidelines were the law. And he was going to read the law as it was written."
So, will he go along with the Bush Administration's post-Booker plan to ask Congress to make all federal crimes result in a mandatory minimum sentence? Alberto Gonzales'remarks this June are here.
Where are the Dems on this issue? Here's what those running for President had to say about mandatory minimums and the crack/powder debate in July.
Update: More from Mukasey on how he'll be independent from the White House:
At a Senate Judiciary Committee meeting Thursday, chairman Patrick Leahy recounted asking Mukasey during a private meeting about White House meddling in criminal and civil cases.
"And he said, 'I'll tell you right now, if anybody calls any member of the Justice Department, if I'm attorney general they'll be given two numbers: It'll be the telephone number of the attorney general and the telephone number of the deputy attorney general. And they'll be told that if they want to talk to anybody, these are the only two people who can talk about this case. And we may well not talk about it,"' Leahy, D-Vt., quoted Mukasey as saying.
Mukasey continued by adding that if a Justice Department employees discusses cases "with somebody outside, whether from the White House or members of Congress or something else like that, they will be fired,"
