Mukasey Confirmed as Attorney General, 53-40

Michael Mukasey was confirmed as Attorney General in a late-night vote despite the vehement opposition of key Democrats over his refusal to state unequivocally that waterboarding is a form of torture. Six Democrats plus Joe Lieberman joined all 46 Republicans in the vote. Notably absent were each and every one of the Democratic senators running for president: Hillary Clinton, Barack Obama, Chris Dodd, and Joe Biden.

As Dan Eggen and Paul Kane note in their front page story in today’s WaPo, “The final tally gave Mukasey the lowest number of yes votes for any attorney general since 1952, just weeks after lawmakers of both parties had predicted his easy confirmation.”

Why, though, did he get confirmed? The Democrats have a slim majority in the Senate. The opposition party president is unpopular at historic levels. Several Democratic senators are running for president.
Yet even the liberal Dianne Feinstein voted for him, along with Chuck Schumer, Evan Bayh, Thomas Carper, Mary Landrieu, and Ben Nelson.

Kevin Drum figures, “no Bush nominee would ever have declared waterboarding illegal, so it’s not like we could have done any better. And we really do need someone running the Justice Department, since it’s basically been on autopilot for the past year or so.” True. One Democratic senator (I believe Schumer) said essentially that on NPR this morning.

Still, as Thoreau observes, Democrats could have filibustered.

The lack of a filibuster suggests that there are some serious institutional/leadership issues here. […] I don’t get Leahy. Yes, I know, he voted against Mukasey, but I recall that in the 1990’s the Republican committee chairs and majority leader discovered all sorts of arcane procedures and rules to pretty much block anything that they wanted. But under Democrats the leadership is unable to block, well, anything.

It’s an interesting question. Certainly, in our “24” culture, the Democrats have to be careful about being portrayed as weak on terrorism.

Moreover, Mukasey was essentially parsing words on the issue, refusing to label the practice “torture” but stating that it was “reprehensible.” A practice which, we’re led to believe, has been used exactly twice and that was banned a few years ago. That rendered the fight one over semantics rather than policy.

The most interesting thing that I keep coming back to is that not one of the Democratic presidential wannabes, including vanity candidates Biden and Dodd, thought it worth coming back to Washington to cast a vote — let alone lead a filibuster — on this issue. That leads me to think they don’t think this is a good issue for them.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Anderson says:

    Disappointing Democrats … wotta surprise.

    I will concede, however, that the confirmation battle wasn’t the best way to go. If the Congress is upset about waterboarding, let’s see some subpoenas, some contempt citations, whatever it takes to get all the facts out in public. Then if the AG won’t prosecute, impeach him. THAT is what a seriously angry Congress would do.

    But then, we go to bat with the Congress we have ….

  2. jukeboxgrad says:

    “A practice which, we’re led to believe, has been used exactly twice and that was banned a few years ago.”

    The key words there are “led to believe.” In the last few years, we’ve been “led to believe” lots of things that turned out not to be true. One would think that we would learn something from that experience.

  3. James Joyner says:

    In the last few years, we’ve been “led to believe” lots of things that turned out not to be true. One would think that we would learn something from that experience.

    Sure. But the fact that there’s no proof that this is an ongoing practice makes it harder to rally support for blocking an otherwise qualified nominee on account of what labels he’s willing to apply to it.

  4. jukeboxgrad says:

    “makes it harder to rally support”

    True, fair enough. I think you’re correctly describing a political reality. But I think a key part of the political reality is that there are a lot of people who are still inclined to give Bush the benefit of the doubt, even though he has proven he doesn’t deserve it.

  5. Hal says:

    “makes it harder to rally support”

    As we’ve had vividly demonstrated on this site and blatantly demonstrated in the Wall Street Journal, Torture has become a value proposition for the right wing. I’m sure James will raise his hand in protest, but the sad fact is that it seems that the political calculation is that the centrist position in American politics is to be ambiguous about torture so you can pick up enough of the right wing voting block.

    Slouching towards Bethlehem, indeed.

  6. James Joyner says:

    I’m sure James will raise his hand in protest, but the sad fact is that it seems that the political calculation is that the centrist position in American politics is to be ambiguous about torture so you can pick up enough of the right wing voting block.

    That’s only partly right, I think. As I alluded to in the post,

    Certainly, in our “24— culture, the Democrats have to be careful about being portrayed as weak on terrorism.

    being “ambigious about torture” goes well beyond the “right wing voting block.” The Democrats aren’t competing for that block, after all; certainly not if Hillary is the nominee. Rather, they clearly seem to think that swing voters value that ambiguity.

  7. Hal says:

    That’s only partly right

    Well, I did say “pick up enough of the right wing voting block”.

    The swing voters in question aren’t looking for the candidate to swing left after all. The WSJ opinion piece, as well as numerous other posts and articles out from the right (not to mention numerous commenters have on this site) seem to have made it pretty clear that torture is a right wing value that dems are too wimpy to support because of the ACLU Islamofascist base.

    Thus the whole “unwilling to torture” == “soft on terror” meme.

  8. […] on the Subject are: Captain’s Quarters, The Newshoggers, Los Angeles Times, Power Line, Outside The Beltway, UrbanGrounds, The Heretik, MSNBC, Donklephant, Washington Monthly, Law Blog, Prairie […]

  9. Wayne says:

    I’ve been surprise that many of my liberal friends once they get past “I hate Bush” are much more for torture than I am. I believe it should only be use in very rare circumstances. My lib friends tend to be a great deal more aggressive on when to use torture.

    Anyone know of a poll that asks if torture should be allowed and doesn’t mention Bush or politics?

  10. Hal says:

    My lib friends tend to be a great deal more aggressive on when to use torture.

    I think this is one of those “I used to consider myself a Democrat, but thanks to 9/11, I’m outraged by Chappaquiddick” gambits.

    69%, for example, think water boarding is torture and 58% think that it shouldn’t be used to get information from suspected terrorists.

    Now, if you think those numbers suggest to you that “your liberal friends” are more aggressive on when to use torture, then you believe some things about politics which are demonstrably not true.

  11. Ken Hahn says:

    Please remind me, I’ve forgotten. Who were all the cabinet appointments blocked by Republicans during the ’90s?

  12. James Joyner says:

    Who were all the cabinet appointments blocked by Republicans during the ’90s?

    It seems to me that a few Clinton nominees got derailed, including at least one AG nominee: Kimba Wood, Lani Guinier, and a couple of others. At least two or three over nanny issues.

  13. Wayne says:

    Hal
    First polls numbers don’t dictate what my liberal friends think. The reason I ask for a non-political poll was to have something to compare their feelings with. Their attitude frankly surprised me.

    The poll you link to gave nothing but opinion on the results and was done in a political context. When politics is involved it cloud polls and people statement.

    Example, last Saturday after shooting pheasants all day the lone liberal brought up politics. He hated Republicans, Bush, waterboarding, etc. I delve into torture further with him. He finally stated that he didn’t give a dam if they torture all suspected terrorist but didn’t trust Bush to do it. I found similar feelings many times before.

    Once you strip the politics from it, many will give you a different opinion. Polls often are manipulated by the context in which they are asked and the way the questions are asked. I doubt a non-political poll exists about torture but would like to see one.

    Stereotypes are sometimes true but I not going ignore facts just because they go against a stereotype.

    You sound like you have your mind made up come hell or high water.

  14. Hal says:

    You sound like you have your mind made up come hell or high water.

    You sound like you’ve made up your theory based entirely on one single instance. Quite simply, the “I polled all my friends and find X” is a fallacy which even has a name: Biased Sample.

    The poll you link to gave nothing but opinion on the results and was done in a political context.

    Wow. First, all polls are a report on opinion. Second, there is no such thing as a poll about political issues done in an apolitical environment. It’s an impossibility.

    So, um, you want some rarefied environment where torture isn’t going to be a question that isn’t hyper charged with political context? Dude, the WSJ opinion paged has weighed in for it, not to mention countless right wing pundits all of whom make the same point that torture is a right wing value and the democrats are too wimpy to be for it.

    Heck, considering that 9/11 has been completely hijacked as a political issue (Um, Giuliani, who’s apparently made it his entire platform), and torture has been part of the political discussion since that fabled date, I’m wondering how you think politics are going to be stripped from the issue of torture? I mean, hello? Abu Ghraib?

    I doubt a non-political poll exists about torture but would like to see one.

    I’m just stunned to see you make this statement. In the poll I cited, the question was asked “do you think water boarding is torture”. And then they asked “do you think torture should be used on suspected terrorists”. I’m not sure where the “politics” have infected these questions, but I eagerly await your explanation as to how these questions need to be stripped of politics.

    You seem to be under the opinion that just because – you know – torture happens to be a big political issue that somehow people who would normally be for torture are against it because they hate Bush so much? Or what? I mean, even if we take the rather bizarre idea that there are “politics” entwined in the questions in the poll I cite above, your entire thesis seems to be that “My lib friends tend to be a great deal more aggressive on when to use torture” (1 person sampling, apparently). Clearly, either you believe that 58% of the population is not liberal, and that the remaining 42% who think torture is a great idea for interrogating terrorists are the liberals.

  15. Wayne says:

    Hal
    Where to start, first I wasn’t guilty of the “biased sample fallacy” since I did not state a conclusion about the population based on my small sample. I simply stated my experience and ask for more information. I did not make a conclusion base on it.

    “Wow. First, all polls are a report on opinion”

    Polls are to sample opinions. True but when you use the polls to come to a conclusion, you are expressing an opinion of what those polls say just as that link article did. It did not simply state the questions and the results but drew conclusion from it.

    Waterboarding has been a big political issue and a poll on waterbaording would be political. We don’t even know what the actual questions were are the preamble statements leading up to the questions.

    The poll wasn’t broken down by political affiliation so for all we know the 40% support could mostly have been dems. I don’t know. I believe that there are ways to take a poll and limit political bias.

    I only sited one case but I experience many more instances. I didn’t state a thesis but only ask for information. If I stated a thesis it would be that all this jumping conclusion on many things could be wrong, including Libs may be more aggressive than many think and are not weak on interrogations but only seem so because of politics. Personally I think libs are but don’t have much data to back that on beyond politics and my personal experience contradicts my belief. I chalk up the personal experience due to the area that I live in but again that just speculation.

  16. Hal says:

    I simply stated my experience and ask for more information. I did not make a conclusion base on it.

    Okay, fair enough.

    True but when you use the polls to come to a conclusion, you are expressing an opinion of what those polls say just as that link article did. It did not simply state the questions and the results but drew conclusion from it.

    Um, what conclusion do you think was erroneously, hastily or whatever, drawn? The questions are *simple*:

    Asked whether they think waterboarding is a form of torture, more than two-thirds of respondents, or 69 percent, said yes; 29 percent said no.

    What conclusion, other than the obvious conclusion stated, do you believe is being drawn here that is colored by political results. It seems to be a very clear cut case that 69% of those polled think water boarding is torture. Period. End of comment.

    Further

    Asked whether they think the U.S. government should be allowed to use the procedure to try to get information from suspected terrorists, 58 percent said no; 40 percent said yes.

    Again, where is the politically tinged conclusion?

    The poll wasn’t broken down by political affiliation so for all we know the 40% support could mostly have been dems.

    That’s not the same as stating that the poll is politically biased or is in error because it was done in a “political atmosphere”.

    A minor amount of googling brought up this ABC poll, which is a couple years old, which does have such breakdowns.

    In terms of partisanship, most Republicans, 55 percent, say physical abuse is acceptable in some cases; so do about half of independents, but 38 percent of Democrats. About four in 10 Republicans and independents say torture is acceptable in some cases, while fewer Democrats, 27 percent, agree.

    I’m sure that with a bit more effort, one can find more temporally relevant information. My guess is that the numbers have polarized even more considering that most of the right seems to have gotten on the torture band wagon, given that it’s now considered to be a partisan litmus test.

    Ball’s in your court, given that you have the same access to google as I do.

  17. Wayne says:

    Hal

    “Asked whether they think waterboarding is a form of torture” is not a question. It is either a conclusion of what someone thought was ask or a rephrase of actual question. A rephrase would be better stated by “when ask “do you think waterboarding is a form of torture” the results were etc”.

    What’s is wrong with giving the actual survey questions? I have seen too many polls where the surveyors restated the questions ask in total bogus ways or tricking the people taking the poll by asking lead up questions so they answer the final question in the way someone wants.

    Waterboarding has been in political headlines for quite a while. Most answering those questions will take it in political context of whether they support Bush or not.

    Anytime someone give the results of a poll without the raw data such of actual questions, breakup of those poll, sampling methods, etc then it is a conclusion of the polling. Anyone who has study statistics and polling knows this.

    For example I could ask, “should torture always be allowed?”. 67% says no. Therefore I could restated it that when ask whether torture should be allowed 67% said no which is a lie or at least grossly misleading at best.

  18. Hal says:

    Wayne

    “Asked whether they think waterboarding is a form of torture” is not a question.

    Um, this is an article, *not* the actual poll question. Sorry, but this is nit picking of the most excruciating kind. Your rephrasing isn’t a rephrasing at all – seriously. There’s no “there” there.

    What’s is wrong with giving the actual survey questions?

    Ask CNN. I’m sure they’re available if we dig long enough. The problem, from my POV, is you’re focused on the trees – heck, the bark or even the cells in the bark – and can’t for the life of you see the forest. I’m sorry, but your “preferred” rephrasing above pretty much demonstrates that you’ve got nothing but air.

    Most answering those questions will take it in political context of whether they support Bush or not.

    I’m sure you’re a sociologist and psychologist so you can make these assertions with confidence.

    Anyone who has study statistics and polling knows this.

    Wow. Okay.

    Look, clearly you’re down in the weeds parsing minutiae. Doubt we’re ever going to come to anything approaching the same concepts where we can begin to have agreement…

    Have fun storming the castle.

  19. Wayne says:

    Yes I am suspicious of any poll or statistics that don’t back it up with links to raw data. The reason is that I have seen too many of them play it slick. They play the “it all depends what definition of “is”is”games.

    Once they stop falsely representing a tree as the whole forest, I will stop asking if they are using a single tree to represent a forest.

    It must be nice to believe everything you hear from the press. Foolish but nice.

  20. Hal says:

    It must be nice to believe everything you hear from the press. Foolish but nice.

    Okay, now you’re descending into moronville.