This diary not associated with any candidate or campaign.
Were I in the Senate, I would have voted against the nomination of Michael Mukasey to be Attorney General. I would have put off the vote until after we had passed a resolution making clear the sense of Congress on the illegality of waterboarding. I would have participated in a filibuster of the nomination until such time as he agreed that waterboarding was illegal and constituted torture. I would have encouraged others to join me in that filibuster.
But, having lost the vote, I would never turn around and say that with this vote the Senate has condoned torture, as many here have done. Not only is it wrong, it harms the cause of opposing torture. It's dramatic, but while this vote is a failure, it is not the abject catastrophe people make it out to be. But calling it one is a self-fulfilling prophecy.
Let me say one thing flat out: in my opinion, the Democratic Party was comfortable losing this vote. You can hang that around their necks, sure, but you should at least understand why that is.
The decision to accept losing the vote came from one of two sources and I don't know which it is. First, it may be that Harry Reid decided to block plans for a filibuster. I don't think that's true, because then any individual Senator could have placed a hold, but I can't rule it out. Second and more likely, it may be that fewer than 41 Senators -- including the five missing Presidential candidates -- were willing to filibuster. Yes, it may be that some people were willing to vote no but not to block the nomination, in which event a filibuster would not have held.
(You can argue that Reid should have still allowed a cloture vote so that we could see which of the 40 Senators who opposed Mukasey were unwilling to filibuster him. That would make sense if Reid were a journalist or a netroots activist. But he's a Majority Leader, and he serves his caucus, and sometimes that means letting them get away without having a vote that spotlights the hypocrisy nuance of their position.)
In this case, at least 40 Senators wanted to vote no, but evidently wanted to stop short of blocking the nomination. Why? I suggest two reasons:
(1) They did not think that Mukasey's taking office would make matters much worse in the domains of torture and Unitary Executive theory.
(2) They did think that Mukasey's taking office would make things better in other domains within the Department of Justice.
(1) Why Congress didn't think approving Mukasey was so bad
Why believe that Mukasey's taking office would not make matters worse re torture et al.? Because the status quo is so awful. The temporary leadership of the DOJ is even more ideologically repugnant and driven than is Mukasey. As Kagro X has said, the Attorney General (at least with respect to these issues) has been and will continue to be Cheney's muse David Addington, whether Mukasey is confirmed or not. That means that, from their perspective, appointing him doesn't make this worse.
People here argue that now the Senate has given its moral imprimatur to whatever Mukasey does. No, it hasn't -- at least not from the perspective of these Senators. What they have said is that they trust him to enforce the law. You may rightly say that this is a stupid decision. But saying that they trust him doesn't actually mean that they trust him, it means that when he turns around and "betrays" them, they can claim to be shocked (shocked!) The effect is that by seeming foolish and naive rather than supportive, they can distance themselves from the illegal actions he then takes.
That is important because, down the line, we may well be in a position to round up all of these bastards -- including Mukasey, if he does facilitate future torture -- and throw them in jail, and when that happens we'll want to be able to say that Congress never approved of their support for torture. We'll want Congress to be able to say "we approved you in good faith, even knowing that you were expressing a belief contrary to law, expecting that you would not act on that contrary belief. But you betrayed us."
The implication is that even if I believed that Congress, by approving this nomination, was saying "it's now OK with us for you to torture" -- which I honestly don't believe -- I would not be saying it, let alone screaming it. If this is a shadow play, some sort of game where the Democrats cast the right vote for their constituents while claiming that they didn't realize how their trust could be abused, then so be it. Because some day we will have these bastards in the dock, and I do not want them to have that defense, especially when it's not true.
(2) Why Congress thought that approving Mukasey would be good
Torture is an overriding issue, certainly. Unfortunately, it's not the only one. Reading between the lines -- and I have no inside information here, this diary is entirely my supposition and analysis -- I think that this vote was much more about the U.S. Attorney Scandal. (Rememeber that?) In short, I think that while Congress understood that Mukasey, as Bush's nominee, would not be able to accuse his new employer of torture, they do think that he -- as opposed to the alternative interim guardians of the DOJ -- will be an honest broker when it comes to the US Attorneys. That means that you may see more investigations, better treatment of whistleblowers, perhaps even cooperation with subpoenas, etc.
That is something the Democrats have good reason to care about, especially after the machinations surrounding hte 2006 election. If you read the statements of Schumer, Feinstein, etc., that -- and other areas in which the DOJ was harmed by Gonzales's incompetence as well as his perniciousness -- seems to be their motivation. The AG's position is about more than just torture, and they think that Mukasey will improve the operations -- efficiency and honesty -- of the DOJ substantially. This also is why I think that even though the likes of Feingold and Leahy opposed Mukasey, secretly they did not think that his appointment is such a tragedy. They think that this is someone they could work with.
Conclusion
Imagine, for a moment, that Bush had appointed Ted Olsen to be AG. I think that he would have been shot down yesterday -- or, rather, that he would not have made it out of committee. He would not have been any improvement over the present interim DOJ regime, and he would not have been an improvement in all of the other areas for which the AG is responsible. The Senate -- even Senators who oppose him -- think that Mukasey is different. They think that approving him simply preserves the disagreement with the Executive's positions on torture and unitary power, not that it capitulates to them. And for us to take that position as well is smart politics, because it preserves the notion that these are battles that we can win, even if it isn't until we hold both Executive and Legislative branches in January 2009 (which is still the way to bet.)
I'm disappointed in this vote. I don't like the outcome. But I also do not see it as a acquiescence in torture, and as agreement that torture and the unitary executive are OK under the law. Those are battles that I still plan to fight in the years to come, and to win. I hope others here will come to agree.