Schumer & Feinstein cave. (UPDATED)

Apparently Mukasey's unwillingness to call waterboarding torture along with his view that the president of the United States can operate outside the law weren't enough to persuade Senators Chuck Schumer (D-N.Y.) and Dianne Feinstein (D-Calif.) that he's the wrong man for the job. Their endorsement makes Mukasey's confirmation all but assured. Schumer's explanation is especially, well, tortured:

Judge Mukasey is not my ideal choice, Mr. Schumer said in a statementafterward. However, Judge Mukasey, whose integrity and independence isrespected even by those who oppose him, is far better than anyone couldexpect from this administration.

Really? So how do you explain Mukasey's bizarre 180 on torture and executive authority from the first day of his hearings to the second? The tune-change was distressingly reminiscent of Gen. Petraeus's turnaround on the question of whether the war in Iraq is making us safer. After Petraeus corrected his initial "no" with a "yes" just a few hours later, one senator wondered aloud whether the White House had gotten to the general. Likewise, I can't but question whether such a thing happened to Mukasey. If so, what sort of integrity does that demonstrate? What kind of independence?

Did President Bush's petulant complaints about the supposed holdup on Mukasey's confirmation push Schumer and Feinstein to their decision? Or were they offered something in return? It's hard to imagine the two liberal senators would be comfortable with Mukasey's unwillingness to disavow waterboarding as torture, to say nothing of his testimony on executive authority, in which he suggested that the president is exempt from following certain laws when they conflict with his duty to protect Americans. A vote for Mukasey is a vote for an imperial executive branch. It is a vote against the very system of government Schumer and Feinstein swore to uphold.

Update: Former Nixon White House counsel John W. Dean sees something familiar about the Mukasey nomination:

As the Senate Democrats complete another sad concession to PresidentBush, and confirms a nominee who refuses to declare water-boardingtorture, allow me to offer a brief historical reminder: the SenateJudiciary Committee has conspicuously forgotten that there are directsituational and historical parallels with Judge Mukaseys nomination tobe Attorney General and that of President Richard Nixon nominatingElliot Richardson to be Attorney General during Watergate.

Nixons Attorney General had been removed (and was later prosecutedfor lying to Congress) a situation not unlike Alberto Gonzalessleaving the job under such a cloud. Nixon was under deep suspicion ofcovering up the true facts relating to the bungled break-in at theDemocratic National Committee headquarters at the Watergate, not tomention widespread rumors that he had engaged in abuses of power andcorrupt campaign practices. Today, Bush is under even deeper suspicionfor activities far more serious than anything Nixon engaged in forthere is evidence Bush has abused the laws of war, violated treaties,and ordered (or approved) the use of torture and political renditions,which are war crimes.

Since Judge Mukaseys situation is not unlike that facing ElliotRichardson when he was appointed Attorney General during Watergate, whyshould not the Senate Judiciary Committee similarly make it a quid proquo for his confirmation that he appoint a special prosecutor toinvestigate war crimes? Richardson was only confirmed when he agreed toappoint a special prosecutor, which, of course, he did. And when Nixonfired that prosecutor, Archibald Cox, it lead to his impeachment.

Before the Democrats on the Senate Judiciary Committee completelycave-in to Bush, at minimum they should demand that Judge Mukaseyappoint a special prosecutor to investigate if war crimes have beencommitted. If Mukasey refuses he should be rejected. This, indeed,should be a pre-condition to anyone filling the post of AttorneyGeneral under Bush.

If the Democrats in the Senate refuse to demand any suchrequirement, it will be act that should send chills down the spine ofevery thinking American.

Grant Gallicho joined Commonweal as an intern and was an associate editor for the magazine until 2015. 

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