Good Friday morning Fellow Seekers,
Pres. Bush’s nomination of Judge Michael Mukasey to be attorney general is scheduled for a Judiciary Committee vote Tuesday. The nomination, which was considered a sure bet for confirmation before the committee hearings, has run into problems with several Democratic senators because Mukasey wouldn’t say whether he believes water-boarding is a form of torture.
Water-boarding, which has allegedly been used by U.S. interrogators, involves tying a prisoner on a board and submerging his head in water until he is in fear of drowning as a means of coercing responses.
A New York Times analysis Thursday suggested that Mukasey’s non-committal answers may have been motivated by concern over whether, if he declared water-boarding to be illegal, those U.S. officials who engaged in or authorized the practice over recent years could be sued or prosecuted.
Neither of Minnesota’s senators is on Judiciary, but I asked their offices Thursday whether the senators would vote for the nomination if it reached the floor, and how they felt about Mukasey’s evasive answers on the water-boarding-torture question.
Sen. Norm Coleman’s communications director, Tom Steward, replied by e-mail:
“Norm plans to support the nomination. Congress has passed legislation making water-boarding illegal by Department of Defense interrogators, and Mukasey has promised to look into the question of the CIA’s potential use of this technique and report back. Mukasey has also said that he personally finds water-boarding to be repugnant.
Senator Coleman has concerns about holding a nominee hostage to a larger policy discussion about water-boarding that really has more to do with Administration policy than Mukasey’s credentials. We should certainly have the broader discussion about torture, but not in the context of this nomination. Accordingly, Coleman will support Mukasey.”
Andrea Mokros, Sen. Amy Klobuchar’s deputy chief of staff, emailed:
“Senator Klobuchar will make her decision on Judge Mukasey’s nomination after the Judiciary committee finishes its work.”
The Klobuchar reply did not specifically address the water-boarding issue.
I thought confirmation was about judging competence of the candidate.
Is not one of those warriors in congress asking questions that touch on that aspect, and if so why is the media not talking about it, even in this blog?
So, the “warriors in Congress” should be asking Mulasey: How can you make more effective use of waterboarding and other forms of torture to further the President’s goals of being above the law?
I’ll agree with Coleman (even a stopped clock is right twice a day) that waterboarding is not the main issue.
The real question is Mukasey’s apparent legal position that the President is not necessary bound by laws enacted by Congress. He appears to be supporting the Bushian (and Nixonian) concept of the imperial presidency.
jonerick,
How about “What is your history as an attorney — education, positions held, prominent cases with which you have been involved, positions of public trust you have held, and other things which pertain to competence, as opposed to litmus tests which in effect mean “if you are not with me, I am against you.”
Until recent years, that was considered the appropriate role of the Senate in confirming the appointees of the executive. Attempting to disable his administration by packing it with opponents was not. Apprently in recent times the Senate has decided to “take over” the role of executive office, in contradiction of the Constitution.
As a student of American constitutional history, I find this objectionable.
In my view, asking ANY candidate for an office constitutionally part of the executive branch to discuss positions where the legislative branch may differ with the administration is either sheer grandstanding or an attempt to thwart the constitution.
If it’s any comfort, it was no less objectionable to me when a repub congress tried to do it with Clinton, although as I recall they never pushed it to the lengths this congress does.
“In my view, asking ANY candidate for an office constitutionally part of the executive branch to discuss positions where the legislative branch may differ with the administration is either sheer grandstanding or an attempt to thwart the constitution.”
So, what sort of questions WOULD be acceptable to you?
There is a reason why the Constitution gives the Senate the power to withhold confirmation.
If it’s just a matter of general competence, we could just ask for their law board scores (although I can think of a couple of Bush appointments that wouldn’t even have made it over that hurdle).
“…. disable his administration by packing it with opponents ….”
All the Senate can do is fail to confirm.
It can’t appoint anyone.
And with interim appointments and permanent acting directors of agencies Bush has pretty well gotten around even the ability to withhold confirmation (I believe the number of federal agencies without permanent directors has reached a record high).
I appreciate your perspective from the view of American constitutional history. But when in the history of the constitution have we had a President and administration that engaged in blatant violation of criminal law? Under ordinary circumstances, Congress should defer to the Executive’s preference for nominees by focusing on issues of competence. But where the Executive has claimed, as this one does, that “if the President does it, it’s legal”, then it’s entirely proper for the legislative branch to ask whether the Nation’s chief law enforcement officer will uphold the Constitution and the rule of law. Of course, this begs the question whether members of Congress, who have taken that question “off the table” as far as their own constitutional duties are concerned (i.e. the power of impeachment), are in any better position to ask another branch about its commitment to that rule.
A guy who doesn’t know whether or not water-boarding is torture can’t be all that smart; if nearly drowning somebody isn’t torture, what is? The alternative apparently is that he can’t tell because he hasn’t had access to classified information–at least that’s what the president and apparently Mukasey are claiming. It looks like Mukasey has bought into the Bush theory that if the president waves a presidential wand over criminal behavior it ceases to be criminal behavior.
This goes back to a 17th C. English legal dispute as to whether the monarch was the source of law and therefore above it or a creation of the law and therefore subservient to it. The last English monarch to hold the belief that the executive was superior to the law was James II, who the Brits rewarded by kicking off the throne and thereby settling the issue. Even George III did not hold this view, thus the comparisons of George Bush to George III are unfair–to George III.
[…] Michael Mukasey to be attorney general. Minnesota’s Republican U.S. Senator Norm Coleman last week gave his reasons for supporting the nominations, but Sen. Amy Klobuchar, D-Minn., wasn’t ready to announce her plans until after the […]