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Abdicate and Capitulate

The New York Times had a strong editorial yesterday on the Mukasey confirmation:

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.

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