When Democratic Sens. Dianne Feinstein (Calif.) and Chuck Schumer (N.Y.) announced late yesterday afternoon — usually a time reserved for the White House to dump embarrassing news — that they would support Michael Mukasey for Attorney General, it effectively ended any chance of defeating the nomination. It was disappointing for more than one reason.
There is, of course, the obvious disappointment associated with Democrats helping confirm an AG nominee who claims not to know whether waterboarding is torture. But it’s even more dejecting because expectations had shifted over the last 10 days. When Mukasey was initially nominated, his confirmation was a foregone conclusion. When Mukasey wrapped up his first day of hearings, the whole process became a mere formality.
But after Democratic senators began to appreciate the seriousness of the waterboarding controversy, it actually started to look like we might win this one. That’s when Feinstein and Schumer pulled the rug out from under us, which made the result all the more painful. Some of us started to get our hopes up that Dems wouldn’t cave in the end.
I appreciate that Schumer, in particular, was in an awkward spot — he’s the one who told the White House to pick Mukasey, because he’d be confirmed easily. But consider the rationale that Schumer came up with to defend his decision.
Schumer held a closed door meeting with Mukasey on Friday in which the nominee appeared to offer a crucial assurance: If Congress chose to enact a law banning so-called enhanced interrogation techniques, Bush would have to follow it.
“He flatly told me that the president would have absolutely no legal authority to ignore such a law,” Schumer said. “He also pledged to enforce such a law and repeated his willingness to leave office rather than participate in a violation of law.”
That might even sound vaguely encouraging, at first blush, before we remember the other reason Mukasey’s nomination became controversial — he suggested that the president can ignore certain laws in wartime if he or she believes national security is at stake. So, even if Congress was more explicit in regulating interrogation techniques via statute, what’s to stop Bush from circumventing the law, now that the future Attorney General has said he can?
Feinstein, meanwhile, is even worse.
Yesterday, the California senator seemed to argue that because Mukasey would be an improvement to Alberto Gonzales, he deserves support. Feinstein elaborated on that point today, in an LAT op-ed.
Judge Mukasey is not Alberto R. Gonzales. In our confirmation hearings (and subsequently, in writing), Judge Mukasey’s answers to hundreds of questions were crisp and to the point, and reflected an independent mind. That’s why I intend to vote to confirm him to be our next attorney general. I truly believe he will be a strong advocate for the American people.
The Justice Department is in desperate need of effective leadership. It is leaderless, and 10 of its top positions are vacant. Morale among U.S. attorneys needs to be restored, priorities reassessed and a new dynamic of independence from the White House established.
I believe that Judge Mukasey is the best nominee we are going to get from this administration and that voting him down would only perpetuate acting and recess appointments, allowing the White House to avoid the transparency that confirmation hearings provide and to diminish effective oversight by Congress.
I had the same response to this nonsense as Publius:
Essentially, the administration’s lawbreaking and DOJ-politicization have been so extreme that a candidate who refuses to call waterboarding torture is transformed into a “compromise” nomination. After all, says Feinstein, “he’s no Alberto Gonzales.” Boy, that’s a ringing endorsement. And sound logic too. Here’s a warm plate of tuberculosis for ya. Say what you will, it ain’t the bubonic plague.
Given our low expectations and mangled baselines, refusing to call Spanish Inquisition-era torture “torture” is now something a “compromise” candidate can do and still get through a Democratically-controlled Senate committee. But that’s the point. The Bush administration — and the GOP more generally — goes long. They push hard so that yesterday’s “extreme” becomes tomorrow’s “compromise.” And in this case (like so many others), the tactics have proven successful.
As an addendum, I’d just add that the White House said Mukasey would be better able to answer lawmakers’ questions about torture after he’s confirmed. That would seem to turn the whole process on its ear, but given the circumstances, it’s something senators might want to keep in mind.