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Senate Democrats have been talking a lot of trash over the past few weeks about attorney general nominee Michael Mukasey, but in the end it doesn’t appear that they have the stomach for a full-frontal assault that actually would take him down.
As uneasy as they are over Mukasey’s refusal to give them a definitive answer on the issue of what constitutes torture, Senate Democratic leaders appear to be quietly discouraging their Members from holding up his confirmation, either in the Judiciary Committee today or on the floor.
By declining to try to enforce party loyalty on the Mukasey vote, Senate Majority Leader Harry Reid (D-Nev.) has signaled Democrats not to filibuster Mukasey. After all, the appointment is only for a little more than a year and the Justice Department is in desperate need of leadership.
“He’s been encouraging people to have a full-throated debate, but ... he’s actually been discouraging people from filibustering or slowing down the nomination,” one knowledgeable Senate Democratic source said of Reid.
So it looks like there will be plenty of bluster aimed at satisfying civil liberties groups who are outraged that Mukasey won’t unequivocally say that he considers simulated drowning, or waterboarding, torture.
But in the end, a Democratic-led filibuster of the nominee is unlikely, given Reid’s hands-off approach to the nomination. Even if a few Democrats decided to erect a 60-vote threshold for Mukasey’s nomination, it’s not hard to imagine that 11 or more Democrats would vote with the chamber’s 49 Republicans to beat back the filibuster.
Besides, all four Democratic Senators running for president should be thanking a pair of Judiciary Committee members — Sens. Charles Schumer (D-N.Y.) and Dianne Feinstein (D-Calif.) — for allowing the anti-torture speechifying to move to the Senate floor, where the would-be leaders of the torture-free world can vote, as they’ve promised, against Mukasey. Only one presidential aspirant, Sen. Joseph Biden (D-Del.), will have two bites at the apple, because he sits on the panel.
Schumer and Feinstein announced last week they will vote with all nine Republicans on the panel to confirm Mukasey, a decision that assures his nomination will advance to the floor for a vote either later this week or next week. The two Democrats reasoned — in coordinated statements that were sent out simultaneously on Friday afternoon — that the former federal judge is the best candidate they could hope for given the Bush administration’s previous record of nominating devout conservatives and unabashed loyalists to Cabinet and agency posts.
Echoing their efforts on the controversial judicial nomination of Leslie Southwick, both Reid and Senate Judiciary Chairman Patrick Leahy (D-Vt.) have taken pains to say they are not attempting to influence how their fellow Democrats vote on Mukasey.
Though Reid opposed Southwick’s confirmation and civil rights groups were up in arms last month over his nomination to the 5th U.S. Circuit Court of Appeals, the Majority Leader’s decision both to keep potentially poisonous rhetoric at a minimum and to refrain from whipping his party against Southwick allowed a cadre of Democrats and Republicans to forge a deal on his confirmation.
“With these kinds of nominations, it’s very hard to highlight a party position,” Reid spokesman Jim Manley said. He added, “This gets to the core of what the Senate is all about — the traditional role of advice and consent. ... In the end, it’s up to each individual Senator to decide how they’re going to vote on these nominees.”
Reid said last week that Judiciary members had asked him to keep mum on his own position, but he acknowledged being troubled that Mukasey twice declined to define waterboarding as torture.
“He’s not going to get ahead of the committee,” Manley said of Reid, adding the Majority Leader may announce his position following the committee vote today.
Similarly, Leahy spokeswoman Erica Chabot steered clear of her boss’s behind-the-scenes activities, saying, “The chairman is focusing on a vote in committee, and it is up to the leadership how the vote proceeds after the committee meets.”
Despite his plans to vote against the nominee, Leahy has attempted to dissuade — with apparent success — fellow Judiciary Democrats from asking for a postponement of today’s vote, sources said. Committee rules allow a one-week deferment at any Member’s request.
Senate Republicans said Democrats would be wise to avoid a slow-walk of Mukasey.
Delaying the nomination would “continue to perpetuate the theme of partisanship and inaction that have been the hallmarks of this Congress. Second, Democrats would once again be standing on the side of rights for terrorists instead of what’s in the best interests of America’s national security,” one Senate GOP aide said. “Neither of those messages would resonate well with independent voters.”
With their leader suppressing their desire to filibuster Mukasey, anti-torture Democrats may have found another outlet for their outrage — a Sen. Edward Kennedy (D-Mass.) bill to specifically outlaw the type of “torture” Mukasey refused to recognize, along with several others barred by the Army Field Manual.
In her statement of support for Mukasey, Feinstein said Congress simply should outlaw waterboarding rather than relying on any attorney general to decide whether it amounted to illegal torture.
But some Democrats are concerned that outlawing specific acts of torture could leave the door open for the U.S. government to use other types of torment not covered by the law.
“Others might be fair game. That’s the fear,” said one Senate Democratic aide. “On the surface, it looks like a good bill.”
The Kennedy bill could come up as an amendment during the Judiciary Committee’s consideration of the Foreign Intelligence Surveillance Act on Thursday.