The Dems' Mukasey Moment

When the Senate Judiciary Committee votes on attorney general nominee Michael Mukasey on Tuesday, it will be a telling moment for the Democrats. The question is whether they will stand up to George W. Bush or defer to him on the critical questions of executive power and the use of torture. In other words, will they wimp out or not?

The Mukasey vote offers Democrats a low-cost opportunity to satisfy their base by demonstrating the toughness yearned for by the party's core activists and the so-called netroots. The judiciary committee contains ten Democrats and nine Republicans. If the Democrats hang together, they can scuttle Mukasey's nomination and, more important, reject the administration's embrace of unchecked executive power and its word games regarding torture. According to national polls, most Americans have a dim view of the Democratically controlled Congress. At the same time, many die-hard Democrats are disappointed that their leaders in Washington have failed to end—or even scale back—the war in Iraq. Giving Mukasey the heave-ho will not undo the dissatisfaction, but it would be a welcomed display of spine.

Mukasey started off the nomination process as a sure thing. Democratic Senator Chuck Schumer, a fellow New Yorker, heaped praise on the former federal judge. Nan Aron, president of the liberal Alliance for Justice, said Mukasey's nomination was "a step in the right direction. Thus far, he has shown independence and a willingness to stand up to this administration." Mukasey's first day of hearings was a breeze. But on the second, things went south. Mukasey essentially endorsed Alberto Gonzales' approach to executive power and refused to acknowledge that waterboarding is illegal. In his testimony, he seemed to suggest that the Constitution can be interpreted to mean the president is free to ignore certain laws. It was as if Mukasey had morphed overnight into a kinder and gentler version of Gonzales. And these positions turned his shoo-in into an uncomfortable fit—since the Democrats on the judiciary committee had been hoping Mukasey would be a moderating influence on the Bush-Cheney administration. On Thursday, the Alliance for Justice called Mukasey the "wrong choice." Aron said "he has not lived up" to her organziation's earlier expectations: "In both his testimony and written answers, Judge Mukasey espoused deeply troubling views that could jeopardize our must fundamental freedoms and liberties."

Now that Mukasey's nomination has gone from no-brainer to potential no-go, will the Senate Democrats mount a real fight? On Tuesday, the three leading Democratic presidential candidates—Hillary Clinton, Barack Obama, and John Edwards— each announced his or her opposition to Mukasey. But neither Clinton nor Obama sits on the judiciary committee. Of its ten Democratic members, only four have declared their opposition to Mukasey's nomination: Richard Durbin, Sheldon Whitehouse, Ted Kennedy, and Joe Biden, another presidential contender. The others have been tight-lipped. But several members of the committee could do themselves some political good by opposing Mukasey on principled grounds.

• Senator Patrick Leahy. He's chairman of the committee and a Vermont liberal, but liberal leaders in Washington who work on judicial matters have previously grumbled that Leahy has not been sufficiently vigorous in his opposition to Bush's judicial appointments, sometimes even unwilling to plot strategy for blocking judges he himself opposes. A display of backbone on this occasion would be much noticed.
• Senator Schumer. He earned the wrath of Democrats earlier this year for opposing legislation that would strip hedge-fund and private-equity managers of a generous tax break. As the senior senator from New York, he was watching out for wealthy New Yorkers, many of whom happen to be political funders he has recruited for his campaign and those of other Democrats. A vote against Mukasey could be cheap penance.
• Senator Russ Feingold. This Wisconsin liberal voted for John Ashcroft's nomination as attorney general, explaining at the time that he believed a president ought to get the cabinet of his or her choosing—unless an appointee was, say, a convicted felon. "When the President picks someone who is his ideological soul mate, that's his right, in my reading of 'advise and consent,'" Feingold said in 2005. There's something to that. But he did vote against confirming Gonzales as AG. Regarding Mukasey, Feingold recently said, "I'm very torn, and I'm very concerned about this unwillingness to say straight out what I believe is the case—that is, that waterboarding is illegal." Were Feingold to vote against Mukasey as an exception to his rule, he'd be delivering a strong message. And that would make it tougher for Senator Herb Kohl, his fellow Wisconsinite on the committee, to support the nominee.
• Senator Dianne Feinstein. She's often been the Ms. Triangulation of the U.S. Senate, striking deals with Republicans and taking stands that have peeved Democrats in her home state of California and elsewhere. Her recent vote as the lone committee Democrat in favor of Leslie Southwick, a nominee to the Fifth Circuit appeals court, angered Democrats. Should DiFi turn against Mukasey, she could deliver the fatal blow.

Most likely, every one of the Democrats on the committee would have to vote against Mukasey to derail his nomination, for so far none of their Republican counterparts have opposed the judge. Senator Arlen Spector, the senior Republican on the committee, has defended Mukasey, saying that by repudiating waterboarding without saying it is illegal, he went "as far as he can go."

It's possible that Democrats on the panel are considering a lesser-of-two-evils argument for the confirmation of Mukasey. Emily Bazelon made such a case in Slate on Wednesday: "The acting attorney general, Peter Keisler, is a founder of the Federalist Society (the right-wing judicial outfit), and a dreamboat for movement conservatives. If Mukasey goes down, Keisler stays in. Do the Democrats want him to decide which allegations of election-law violations to prosecute in 2008?"

But the rub is that to protect themselves from the Federalist Society, the Democrats will have to endorse someone who endorses a view of presidential power they find objectionable and dangerous. That's not a good deal. (Perhaps Leahy is contemplating allowing the nomination to go to the Senate floor with a negative recommendation from his committee—a true wimp-out.)

And there's this: The Democrats could pay a political price if they vote for Mukasey out of fear of Keisler. Once more, they would come across as a divided party, disagreeing among themselves on the nomination. Meanwhile, there would be a highly visible split between the pro-Mukasey members of the committee and the anti-Mukasey presidential candidates. Is this any way to run a political party?

In this instance, voting on principle could be good politics. The Democrats would be stating clearly that when it comes to the Bush-Cheney stance on presidential power, enough is enough. Otherwise, they'll be bogged down—yet again—in the politics of internal debate and explanation.