Senators Feinstein and Shumer have decided to support Mukasey in the Judiciary Committee, a move that means that Mukasey will be confirmed. Confirmed despite his having made declarations in front of the committee that declare the president above the law, not bound by law, while also side-stepping the issue of whether waterboarding captives is against American law and international treaty.
What makes Feinstein’s and Shumer's move JUST WRONG here is that they're not looking at –or maybe caring about?—what’s at stake here. It may well be true that Makasey is as good a man as we might reasonably hope for out of this regime. But Mukasey said some things about presidential power (like that the commander in chief doesn’t necessarily have to obey a constitutional federal statute) that show that he’d just be an extension of the lawless presidency, not a check upon it. And the Congress has no business accepting this.
What’s at stake here is bigger than who fills the AG’s office: it is the larger message of defining what this country is and is not. With this regime, we've become something that is contrary to what we used to say we represented: honest government accountable to the people and operating under the rule of law.
Yet here are these two Democratic Senators giving the man who made these unacceptable statements to take office without making the necessary statements and promises that this moment of leverage --the confirmation process- may make possible to extract. Or to then have a noble conflict with the lawless executive in defense of the basic soul of American democracy.
Just contrast this with the confirmation of Eliot Richardson in the midst of Watergate. He had to promise to appoint a special prosecutor in order to get the position. Congress extracted major concessions –the issue then, too, focusing on the rule of law—as the price of confirmation.
Compare that with the present sorry performance. Now, with this nomination, with so much more lawlessness involved than at the time of Watergate—by a whole order of magnitude, if not two—and with the new Attorney-General-designate declaring the president above the law, the Congress does not use this occasion to confront the lawless president and, as the price of confirmation, compel concessions to re-establish the rule of law.
The Congress does not use this as an opportunity to establish that the U.S. is obliged by treaty and by law not to waterboard, that a president cannot order searches without getting warrants, that prisoners and accuseds have rights that the government must respect, and that the president is not permitted to systematically deceive Congress on matters of grave import, like war and peace.
At the time of Watergate, I was not so impressed with what the Congress did in confronting Nixon. But by comparison with now, the men and women of that Congress were veritable heroes of the people, working together to protect the integrity of America.
Feinstein and Shumer apparently don’t see the sorry light shed by that discrepancy, or don’t see that as being terribly important, and these two Senators decide --despite all the fundamentally unAmerican ugliness we have seen from Alberto Gonzalez and the perversion of the justice department-- that it’s not necessary to take a stand here to insist that the attorney general’s office be an agent of the rule of law and not of its subversion.
That is indeed the question: will the attorney general’s office be an agent of the rule of law or will it be an agent of its subversion?
That's what's at stake, and an issue like this is just too important for Feinstein and Shumer to allow it to be subordinated to any other consideration. In our times, there is no more important question. For all the other questions depend on our preserving our constitutional democracy.
And not only is a moral obligation and part of their sworn duty to protect the Constitution, but it would also be good politics. This is one more teachable moment, and this cave-in only squanders yet another such opportunity to dramatise to the American people what this regime is about and why it must be held in check, if not impeached.