Attorney general: If one can be pragmatic instead of partisan for a moment, former federal judge Michael Mukasey is about as good as Democrats are going to get out of this president.
Michael Mukasey, George W. Bush's nominee to be the nation's next attorney general, could be forgiven if he were to view his interrogation before the Senate Judiciary Committee as a form of torture.
What eight Democratic senators on that committee couldn't forgive him for was his torturous answer, ironically, on a question about torture. Mukasey hedged on whether "waterboarding" — an "enhanced interrogation technique" that simulates drowning — is illegal. "If waterboarding is torture ... torture is not constitutional," Mukasey said in testimony on Oct. 18. He also described it as "repugnant to me" and "over the line."
It was still too much of a dodge for those eight senators — Illinois' Dick Durbin among them — who voted against sending Mukasey's nomination along for a vote before the full Senate. They were outnumbered by 11 others, including two Democrats — Dianne Feinstein of California and Charles Schumer of New York.
It's OK to have misgivings about Mukasey's hyper-careful choice of words in what is also, sadly, a hyper-partisan, confrontational process that discourages total honesty and encourages hair-splitting. It's very OK to object to waterboarding, which is as old as the Spanish Inquisition and as abominable as those who have exercised it. If we're looking for role models, consider Cambodia's genocidal Khmer Rouge. We prosecuted and convicted a Japanese officer for the practice in World War II. If there's any debate about it being torture, whether you're on the giving or receiving end of it makes all the difference. It would appear to be illegal, given the amendment pushed and passed by former POW, current senator and GOP presidential candidate John McCain in 2005.
That said, as to how revealing this single answer on a single issue is of Mukasey's thinking and character, it shouldn't be exaggerated, especially against the totality of his history. The threshold question is whether Mukasey as attorney general is likely to exert the independence and courage to say no to a president who's proven he doesn't always know where the Constitution begins and ends.
On that score, there's little to suggest he'd be anybody's lap dog — not the president's, but not Congress', either. He showed that by refusing, despite considerable pressure, to box himself into a legal corner that could compromise him and others in the future.
If one can be pragmatic instead of partisan for a moment, this former federal judge is about as good as Democrats are going to get out of this president for a critical office. He's a big improvement over Alberto Gonzales. No one questions his intellectual fitness. Watching him is to get the sense that he has what it takes to put the brakes on this White House, when warranted, and to bring stability to a beleaguered department. He has but 14 months to do so.
We'd vote to confirm Mukasey.