It seemed like Attorney General nominee Michael Mukasey was headed for an easy confirmation. His first day of hearings were a breeze, and senators from both sides of the aisle could barely contain their excitement. A Judiciary Committee that tired of Alberto Gonzales years ago was delighted to have someone before them who was willing — get this — to answer questions.
And then there was that second day, in which Mukasey refused to say whether he thought waterboarding constituted torture. That was followed by Mukasey’s assertion that the president “can act outside the law” during a war.
Will this be enough to derail the nomination? Maybe not, but it’s a heckuva lot less certain that it was after the first day of hearings. Sen. Arlen Specter (R-Pa.), the ranking Republican on the Judiciary Committee, sounds close to voting against Mukasey.
In a letter to Mr. Mukasey, the Republican senator, Arlen Specter of Pennsylvania, posed a series of questions about Mr. Mukasey’s suggestion in his confirmation hearings last week that the president’s authority as commander in chief can supersede laws passed by Congress, a view shared by White House officials.
“How do you deal with the public concern that the rule of law is supreme and the president at times appears to put himself above the law?” Mr. Specter asked Mr. Mukasey, a retired federal judge from New York. “If you believe the president can act outside the law, how do you square that belief with your statement at the hearing that ‘the president doesn’t stand above the law’?”
Now, we’ve all seen Specter follow a disappointing path before. He’ll express reasonable concerns about Bush administration overreach, we’ll get our hopes that he’ll stick to principles and the rule of law, and then in the 11th hour, Specter will cave in exchange for some amorphous promise from the White House that Bush never intended to keep anyway.
But if Specter is sincere, and Mukasey can’t explain why he believes the president is unbound by the law, things could get interesting. As the LAT put it, Mukasey will apparently face a “narrower and more contentious” confirmation vote.
Of course, there’s an uncomfortable truth underpinning all of this: what if Dems could beat back this nomination?
It’s unlikely Dems have the votes to defeat the Mukasey confirmation — they probably won’t even come close — but even if they did, one has to assume the next nominee would be even worse. Indeed, Bush picked Mukasey in part as his version of an olive branch. Even Chuck Schumer likes him.
Neil the Ethical Werewolf argued the other day:
If this were the first year of the Bush presidency, I’d think differently. It’d be valuable to send Bush a message that he can’t nominate jackasses who claim not to know whether waterboarding is torture. But we’re just a year from elections and Bush is close to gone. What matters is making sure that the 2008 elections are free from Gonzales-style interference. If the Attorney General is a GOP fixer (Ted Olson), plotting dirty tricks to help his friend of 25 years, Rudy Giuliani, win the presidency, it’ll be a greater blow to the cause of freedom than if Mukasey is permitted a year as AG under a lame-duck president.
I don’t disagree with any of this, and I shudder to think who the White House would send up next. But part of me is still anxious to see which senators are willing to take a firm stand against an Attorney General nominee who says publicly that the president isn’t bound to the rule of law.