Feingold Will Oppose Mukasey; Feinstein Won't. And Why:

Posted by Damozel | This quote comes from TPM.

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.  (Feingold to Oppose Mukasey)

I couldn't have said it better myself.  Which is why we send these people to Congress. Will the Democrats who are planning to vote for Mukasey---for example, Diane Feinstein--- think again? 
 

Nope. In an op-ed piece in The L.A. Times, Feinstein "explained" herself as follows:   "I believe that Judge Mukasey is the best nominee we are going to get from this administration and that voting him down would only perpetuate acting and recess appointments, allowing the White House to avoid the transparency that confirmation hearings provide and to diminish effective oversight by Congress." (LA Times)

That's what I said too at first.  But I don't have a problem with taking on board new information and with reversing myself when I do.  As one of my colleagues said at the time, what does it say about the extent to which standards have slipped under the Bush Administration that we would seriously advance the argument that we have to confirm his appointee because he's not nearly as bad as Gonzalez.  Which is exactly what Diane Feinstein said:  "Judge Mukasey is not Alberto R. Gonzales."(LA Times)

The hell?  Is that the point we've reached:  "Confirm Mukasey; he's no Alberto R. Gonzalez!"?  As Kagro X points out, "the entire population of the world minus one is also "not Alberto Gonzales.""

Feinstein thinks the whole torture thing---personal repugnance of Mukasey to waterboarding, statement by Mukasey that it's illegal for the American military to use it, inability of Mukasey to say that it's also illegal for the executive branch and its agents, blah dee blee blee blah---will be resolved by legislation introduced by Ted Kennedy. (LA Times)   "  Congress should go further and explicitly ban waterboarding and other so-called enhanced interrogation techniques for all parts of the government. Sen. Edward M. Kennedy (D-Mass.) has introduced legislation to this effect. This legislation should be passed as quickly as possible." (LA Times)    

Just one problem there, sweetie:  it already IS illegal for all parts of the government and that hasn't stopped the Bush Administration from using it. (Balkinization)  Quoting now from Jack Balkin of  Balkinization.....

Apparently Senator Feinstein has not read the Detainee Treatment Act, which she voted for.

SEC. 1003. PROHIBITION ON CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT OF PERSONS UNDER CUSTODY OR CONTROL OF THE UNITED STATES GOVERNMENT.

(a) In General- No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.

(b) Construction- Nothing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section.

And what of 18 USC section 2340A, which Congress enacted in 1994 to enforce the Convention Against Torture?

(a) Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

What does it say about our elected representatives that Senators simultaneously believe that waterboarding is torture but also believe that CIA interrogations using waterboarding are currently legal?(Balkinization) 

But maybe what she means is that Kennedy's legislation---IF passed and IF not vetoed by Bush--- is so explicit that it would close all the loopholes that Bush and the new attorney general might otherwise exploit.  "Confirm Mukasey!  We'll close all the loopholes!"  Yeah, that makes me feel much better about her support for him.

But as Kagro X points out, it was always a mistake to narrow the question down to the single point of Mukasey's views on torture.  "[T]he question really never should have been one about torture in particular, though that's an easily grasped concept that makes a good rallying point. Rather, the question should always have been about the rule of law. Nothing is more fundamental to the functioning of the country, and no concept ought to be more central to a nominee for Attorney General. " (DiFi "explains" herself)  

And there's more:  Feinstein also hopes that the Judiciary Committee would ask Attorney General Mukasey, after he's confirmed, to come back and "discuss these things further."  (LA Times)  Why not?   It's not as if Bush Administration officials, once they're firmly in place, have a history of stonewalling, refusing to cooperate with Congress, and placing their loyalty to the president above every other consideration, including---or especially---the Constitution.
 

Hey:  the Senate confirmed Alberto R. Gonzalez.  Why NOT confirm Michael Mukasey, who is clearly better in every way except----as Feingold notes---in the ways that Democrats are especially worried about:  his apparent endorsement of Bush's theory of the Extreme Executive and his unwillingness to say that torture, besides being personally repugnant to him, is also illegal? 

Oh God, I can't even go on being sarcastic about this.  Rule of law, people! RULE OF LAW!  For discussion of Mukasey as a jurist---one of the two branches of government charged with checking the unwarranted expansion of the executive branch---see Glenn Greenwald's Salon article here.

As for Congressional (and other) Republicans---this is slightly off topic, but related--- why aren't they exercising their constitutional obligation to reign Bush in how are they going to like it when Hillary or Edwards or Obama becomes the Unitary Executive, eh?   Hmm?  Hmmm?  They've let Bush create a monster and that monster very well may pass out of their party's control when Bush's term is over.  What are they going to do and say then?

At Lawyers, Guns, and Money Scott Lemieux has tepid praise for Feingold's statement---"Good, if moot"---and much more to about the "depressingly predictable" sellout by Feinstein.  (The Good and the Ugly)

Other blogger responses here and here.

RELATED BN-POLITICS POSTS

Is Waterboarding Torture? Part 5: Schooling the Senate  

Bush Administration Blocked Critic Who Experienced Waterboarding

Is Waterboarding Torture? Part 4:  Schooling Mukasey

Is Waterboarding Torture?  Part 3:  Let's Ask the Experts

Is Waterboarding Torture?  Part 2:  Schooling Rudy

Giuliani:  Is Waterboarding Torture?  "It Depends on Who Does It."

Mukasey's Views on Torture:  More Flexible than Advertised

Romney's Pick for National Security Adviser Would Torture 'in a Heartbeat.'

I say 'Torture'; You Say 'Harsh Interrogation Techniques'.... (Updated)

 More Secret & Illegal Maneuvering re: the Administration's Use of Torture

General Says Rumsfeld Misled Congress re: Abu Ghraib

Colin Powell Calls for Closing of Guantanamo

Senate Takes Swipe at Secret CIA Prisons, Seeks to Learn What Bush Knew Before Invading Iraq

Boeing Faces Suit over CIA's Secret Abductions

LINKED
Sen. Feinstein: Judge Mukasey has my vote (LA Times)
Feingold to Oppose Mukasey (TPM)

Comments

[pussreboots]

We were angry enough at Feinstein's vote that my husband called her office to complain.

[xensen]

Feinstein epitomizes the Democrats' spinelessness problem.

[Damozel (administrator)]

So glad people are protesting, even though the protests are moot. I don't think Feinstein is "spineless" at all; I wish she had been. She's taken terrible heat for supporting Mukasey. I don't think her reasoning holds up, but I suppose as a moderate I ought to applaud the bipartisan action. But in this case, I just can't.

[Carrie Lofty]

Voting for Russ Feingold is the best thing about living in Wisconsin and the best thing about voting at all. The man is a superstar.