Even if Chuck Schumer is right when he says that Mukasey’s “integrity and independence” are unimpeachable, and even if it’s true that rejecting his nomination might tempt Bush into circumventing the Senate and appointing an acting attorney general (*) who would be worse, voting No still seems like the only chivalrous course of action, given the results of the confirmation hearings.

Perhaps it’s unfortunate for Mukasey that the hearings went the way they did, but his nomination is now concomitant with a referendum on the acceptability of tying people up and pouring water into their lungs.

If Mukasey won’t acknowledge that waterboarding prisoners is torture, how the hell can you vote to make him our nation’s chief law enforcement officer?

It’s one thing for a lawless administration to torture people secretly. They’ve dishonored our country, and the shame of it will last for a long time, but it’s nevertheless the case that our constitution makes it very hard to stop an out-of-control president. Even an assertive and well-intentioned Congress is almost powerless to prevent the president from torturing people, if he really wants to, is willing to advance ludicrous legal theories about breaking the law in times of “war”, and is no longer sensitive to public approval or the need to win elections.

But there’s no reason — none whatsoever — for Democrats to sanction his behavior by their indifference to it. It appears that Schumer and Dianne Feinstein will vote with the Republicans to pass Mukasey’s nomination out of committee. Shame on them. Hopefully Russ Feingold and Herb Kohl will at least vote No when Mukasey’s nomination comes to the full Senate.

Update, 11/4: Feingold announces that he’ll oppose Mukasey:

I will vote against the nomination of Judge Mukasey to be the next Attorney General. This was a difficult decision, as Judge Mukasey has many impressive qualities. He is intelligent and experienced and appears to understand the need to depoliticize the Department of Justice and restore its credibility and reputation.

At this point in our history, however, the country also needs an Attorney General who will tell the President that he cannot ignore the laws passed by Congress. Unfortunately, Judge Mukasey was unwilling to reject the extreme and dangerous theories of executive power that this administration has put forward.

The nation’s top law enforcement officer must be able to stand up to a chief executive who thinks he is above the law. The rule of law is too important to our country’s history and to its future to compromise on that bedrock principle.

(*) It’s not like the Bush Administration has been known for its deference to the unspoken traditions of our democracy.

Posted by Ben Brothers at 4:35 pm, 3 November 2007 and filed under War and Peace. You can follow any responses to this entry through the RSS 2.0 feed.