[NYTr] Abdicate and Capitulate: NYT Edit'l on Mukasey Confirmation

[All the News That Doesn't Fit]

The New York Times - Nov 11, 2007
http://www.nytimes.com/2007/11/11/opinion/11sun1.html

Lead Editorial

Abdicate and Capitulate

It is extraordinary how President Bush has streamlined the Senate
confirmation process. As we have seen most recently with the vote to
confirm Michael Mukasey as attorney general, about all that is left of
“advice and consent” is the “consent” part.

Once upon a time, the confirmation of major presidential appointments
played out on several levels — starting, of course, with politics. It
was assumed that a president would choose like-minded people as cabinet
members and for other jobs requiring Senate approval. There was a
presumption that he should be allowed his choices, all other things
being equal.

Before George W. Bush’s presidency, those other things actually
counted. Was the nominee truly qualified, with a professional
background worthy of the job? Would he discharge his duties fairly and
honorably, upholding his oath to protect the Constitution? Even though
she answers to the president, would the nominee represent all
Americans? Would he or she respect the power of Congress to supervise
the executive branch, and the power of the courts to enforce the rule
of law?

In less than seven years, Mr. Bush has managed to boil that list down
to its least common denominator: the president should get his choices.
At first, Mr. Bush was abetted by a slavish Republican majority that
balked at only one major appointment — Harriet Miers for Supreme Court
justice, and then only because of doubts that she was far enough to the
right.

The Democrats, however, also deserve a large measure of blame. They did
almost nothing while they were in the minority to demand better
nominees than Mr. Bush was sending up. And now that they have attained
the majority, they are not doing any better.

On Thursday, the Senate voted by 53 to 40 to confirm Mr. Mukasey even
though he would not answer a simple question: does he think
waterboarding, a form of simulated drowning used to extract information
from a prisoner, is torture and therefore illegal?

Democrats offer excuses for their sorry record, starting with their
razor-thin majority. But it is often said that any vote in the Senate
requires more than 60 votes — enough to overcome a filibuster. So why
did Mr. Mukasey get by with only 53 votes? Given the success the
Republicans have had in blocking action when the Democrats cannot
muster 60 votes, the main culprit appears to be the Democratic
leadership, which seems uninterested in or incapable of standing up to
Mr. Bush.

Senator Charles Schumer, the New York Democrat who turned the tide for
this nomination, said that if the Senate did not approve Mr. Mukasey,
the president would get by with an interim appointment who would be
under the sway of “the extreme ideology of Vice President Dick Cheney.”
He argued that Mr. Mukasey could be counted on to reverse the
politicization of the Justice Department that occurred under Alberto
Gonzales, and that Mr. Mukasey’s reticence about calling waterboarding
illegal might well become moot, because the Senate was considering a
law making clear that it is illegal.

That is precisely the sort of cozy rationalization that Mr. Schumer and
his colleagues have used so many times to back down from a
confrontation with Mr. Bush. The truth is, Mr. Mukasey is already in
the grip of that “extreme ideology.” If he were not, he could have
answered the question about waterboarding.

Mr. Bush said Mr. Mukasey could not do so because it would reveal
classified information about Central Intelligence Agency interrogation
techniques. That is nonsense. Mr. Mukasey was not asked if C.I.A.
jailers have used waterboarding on prisoners, something he could be
expected to know nothing about. He was simply asked if, as a general
matter, waterboarding is illegal.

It was not a difficult question. Waterboarding is specifically banned
by the Army Field Manual, and it is plainly illegal under the federal
Anti-Torture Act, federal assault statutes, the Detainee Treatment Act,
the Convention Against Torture and the Geneva Conventions. It is hard
to see how any nominee worthy of the position of attorney general could
fail to answer “yes.”

The real reason the White House would not permit Mr. Mukasey to answer
was the risk to federal officials who carried out Mr. Bush’s orders to
abuse and torture prisoners after the 9/11 attacks: the right answer
could have exposed them to criminal sanctions.

The rationales that accompanied the vote in favor of Mr. Mukasey were
not reassuring. The promise of a law banning waterboarding is no
comfort. It is unnecessary, and even if it passes, Mr. Bush seems
certain to veto it. In fact, it would play into the administration’s
hands by allowing it to argue that torture is not currently illegal.

The claim that Mr. Mukasey will depoliticize the Justice Department
loses its allure when you consider that he would not commit himself to
enforcing Congressional subpoenas in the United States attorneys
scandal.

All of this leaves us wondering whether Mr. Schumer and other
Democratic leaders were more focused on the 2008 elections than on
doing their constitutional duty. Certainly, being made to look weak on
terrorism might make it harder for them to expand their majority.

We are not suggesting the Democrats reject every presidential
appointee, or that the president’s preferences not be taken into
account. But Democrats have done precious little to avoid the kind of
spectacle the world saw last week: the Senate giving the job of
attorney general, chief law enforcement officer in the world’s oldest
democracy, to a man who does not even have the integrity to take a
stand against torture.

Copyright 2007 The New York Times Company