(updated below)
On one level, it is, I suppose, a good sign that there is some opposition to the confirmation of Michael Mukasey due to what ought to be his completely unacceptable positions on torture and more generally on executive power. But it's difficult to avoid some deep ambivalence about the whole spectacle.
It is absolutely the case that Mukasey is a True Believer in all of the most extreme positions of the Bush administration regarding presidential power. That has been clear from the beginning. It is why he was chosen. After all, as a federal judge, he ruled that the President has the power to detain American citizens on U.S. soil indefinitely without ever having to charge them with a crime -- a position he more or less repeated on the first day of his confirmation hearing.
There is no more extreme expression of radical executive power theories than that, yet then-Judge Mukasey expressly embraced it in the Jose Padilla case, only to be reversed by the Second Circuit (though indirectly affirmed by a far-right panel of the Fourth Circuit). So all of this sudden, feigned surpise about how radical Mukasey is seems like a great deal of pretense. Senate Democrats were more than willing to wave him along even knowing all of that.
This notion that Mukasey's unwillingness to declare waterboarding categorically illegal crosses some sort of bright Beltway line seems equally unconvincing, even somewhat manipulative. It has long been known that the Bush administration directed the CIA (at least) to waterboard detainees who were convicted of nothing. There was very little real protest about any of that from any genuine Beltway power circles, including Senate Democrats.
In fact, even knowing that, the Military Commissions Act was enacted merely a year ago, deliberately leaving an unclear legal landscape (at best) as to whether waterboarding was outlawed. And Democrats did not even engage in the debate, and did not even try to mount any serious opposition to it. Quite the contrary, most of them were mute when the debate was being held, preferring to hide behind the McCain/Warner/Graham trio, and were even prepared to vote in favor of the Act until some last minute tinkering made without their participation offended them enough (on procedural grounds) to cause them to cast meaningless votes against it, long after its passage was guaranteed. Even with that, 12 Senate Democrats voted in favor of it.
In 2005, with these issues fully known, the Senate voted overwhelmingly to confirm Alberto Gonzales as Attorney General, notwithstanding his role in creating legal theories justifying waterboarding. Last year, Senate Democrats overwhelmingly voted to confirm Gen. Michael Hayden as CIA Director despite his central role in implementing the illegal NSA warrantless eavesdropping program.
What Judge Mukasey believes is, without question, radical and disturbing. His beliefs -- from the power of the President to violate Congressional statutes to limitless war powers to the authority to order barbaric interrogation methods -- would have been unthinkable six years ago in an Attorney General. But now, it and he are well within mainstream Beltway ideology, thanks to some combination of acquiescence and active support from the core of both political parties. And there is something deeply artificial and manipulative about a Congress that has decided to permit all of these things to take root to pretend suddenly that they are so offended by them, that what Mukasey believes crosses their bright lines so clearly that he cannot be confirmed.
If Mukasey's nomination were rejected (and the likelihood that Democrats will actually take this or any other stand seems very low), it seems as though the most significant impact would be to allow Senate Democrats to claim that they took a stand for critical principles -- principles that they have permitted to be eroded and assaulted for years, when they weren't doing the eroding and assaulting themselves. And while a late defense of these principles is certainly better than none at all, it is far from clear that rejecting Mukasey's nomination would really amount to a restoration of any of these principles.
Anyone selected by Bush to replace him, or a decision to leave in place the current Acting Attorney General, would mean that DOJ is run by someone who shares most if not all of Mukasey's extremist views. That's because those views have become normalized over the last six years. Congress had all sorts of remedies which it chose not to invoke in order to ensure that the administration's lawlessness and torture regimen ceased and that there were real consequences for that conduct -- from lawmaking to investigations and even impeachment. They chose instead to allow it all to proceed.
For those reasons, it is difficult to feel the slightest bit inspired or even supportive as the same Congress now takes a flamboyant and purely symbolic (though impotent) stand in defense of the same principles that they have repeatedly allowed to be violated. In an America as it ought to exist and has existed, the very idea of nominating Michael Mukasey as Attorney General would be unthinkable. In the America that exists today thanks in no small part to our Beltway establishment, there is really nothing unusual or out-of-the-mainstream about Mukasey, and there is something bothersome about this play-acting in pretending otherwise.
None of this is to say that he ought to be confirmed. There very well may be a benefit in finally taking even some kind of a symbolic stand against these radical policies. But if these Senators announcing their opposition to his confirmation were authentic in the convictions they are espousing, they would have been doing -- and will continue to do -- a lot more than simply opposing this single nomination.
UPDATE: This is all now academic, since MSNBC is apparently reporting that both Feinstein and Schumer -- Judiciary Committee members both -- have announced that they are voting for Mukasey, rendering his confirmation all but inevitable. When Bush says: "9/11-AlQaeda-Terrorism-GiveMeX," Democrats always ensure that he gets "X." The only variable is how they will do it, which specific members will ensure that it happens. "X" here was Mukasey's confirmation, and Democrats are thus complying as always. At least the embarrassing efforts to pretend they were ever really going to block this nomination have come to an end.
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