The senators’ excuses for being MIA on Mukasey

Here is something I meant to post yesterday, but didn’t have time after I finally got the info I needed.

Friday morning, I was reading up on Mukasey’s confirmation the night before, when I noticed that not one of the senators running for president had recorded a vote. Since I still needed a topic for my Sunday column, I thought this might be it. I decided to put each of their campaigns on the spot, and write on the basis of the responses I got.

So I e-mailed contacts at each of the five campaigns. Under the heading, "Where was Sen. (blank)?" I wrote:

(contact name),

Why was Sen. (blank) (along with all the other presidential contenders)
recorded as "not-voting" on the Mukasey nomination last night? What was
more important? And what was the senator’s position on the question of
whether he should have been nominated?

— Brad

Unfortunately, the replies were slow coming in. The first was from B.J. Boling with John McCain at 11:51 a.m.:

Hi Mr. Warthen-

Senator McCain’s policy is to be present when his vote would affect the
outcome.  When Sen. Feinstein and Schumer decided to confirm Mukasey it
became clear McCain’s vote wouldn’t change the outcome. He has clearly
supported Mukasey’s nomination. (Please see Sen. McCain and Sen. Graham’s letter below.) Senator McCain was receiving the endorsement of
Sen. Brownback in IA.


I think BJ was confused; the Brownback endorsement was the day before. Anyway, I didn’t hear from the next campaign — Joe Biden’s — until 2:47 p.m.:


Tried to reach you by phone to discuss but got your voice mail so thought I would respond my e-mail.

Don’t know exactly where Senator Biden was late yesterday when the
Mukasey nomination came up on the Senate floor.  However, Senator
Biden had expressed his strong opposition to Judge Mukasey’s
confirmation (link to his statement…) and voted against
reporting the nomination out of the Judiciary Committee.  Further,
Senator Biden has previously indicated that he would not miss a vote in
which his vote would determine the outcome.  Obviously, the Mukasey
vote was not close giving the fact that six Democrats had announced
their support for Judge Mukasey well in advance of the actual vote
taking place.  Call me if you have any further questions.


Trip King

It should be noted that because I was swamped — it being Friday, and my having to switch gears and pursue a completely different column idea — I wasn’t answering my phone, which presented an obstacle to the campaigns. Amaya Smith kept trying to call me, mentioned that she was doing so in an e-mail. I explained that I’d rather have e-mail because I didn’t have time to talk, so she wrote:

Here is the Senator’s
statement opposing Mukasey
early on.

That was at 3:06. At 3:50, I heard from Michelle Macrina with Chris Dodd. She wrote,

At a time when the confirmation seemed assured, Senator Dodd was the first Democrat to voice his opposition to Judge Mukasey’s nomination based on his position on the Rule of Law. He registered his opposition repeatedly and urged his colleagues to do the same.

Zac Wright with the Hillary Clinton campaign was apparently having a bad day, and missed my first e-mail. After I e-mail him again, he responded at 6:14 p.m. with:

She’s made every effort to make her votes, as evidenced by having the best attendance record of the candidates running.  But she’s running for President and was campaigning in NH.  Had this been a close vote, she would have been there.

She’s already spoken out about her views. 
This is her statement from the Senate yesterday.

So those are their stories, and I suppose they’re sticking to them. If I’d had time to chat, I would have pursued the matter further with each, but I was multitasking, and this was a lower priority than cranking out pages. I’m just getting to this now.

What do y’all think?


14 thoughts on “The senators’ excuses for being MIA on Mukasey

  1. Gordon Hirsch

    It all seems pretty unremarkable, business as usual.
    The nomination hung on a single partisan issue, puffed up by partisan politics and media attention to partisans, thereby distracting from larger non-partisan issues, like running the Justice Department in a judicial fashion, which even partisans argue ought not to be done on a partisan basis.
    Each candidate issued an advance partisan statement, then hit the road to curry partisan favor$, counting on fellow partisans to carry the final vote back home, thereby making their individual partisan votes unimportant to the inevitable partisan outcome.
    And these are our candidates for change.

  2. Karen McLeod

    Since I do not support torture in any form, I have to agree with those who did not support Mukasey. I might have thought that it would be worth hanging about to try to influence the vote, but I can understand that the candidates perceived it to be a waste of time. What I do not understand is McCain’s support of Mukasey, given his stand on torture. At the same time, won’t the next president be free to appoint someone else? This isn’t a Supreme court nomination, after all.

  3. Brad Warthen

    All you say is true, Gordon. But as relief from all the partisanship, I offer this story from earlier in the week. Lindsey Graham supported Mukasey, but gave an impassioned speech condemning waterboarding, and urging his colleagues to pass a bill that would clearly outlaw it, so we wouldn’t be dependent on an attorney general’s opinion of whether it’s allowed or not.

    "The world is not short of people and countries who will waterboard you. There’s not a shortage of people who will cut your heads off in the name of religion," Graham said. "There is a shortage of people who believe in justice, not vengeance."

    That, by the way, puts Sen. Graham in the same boat as Sen. Biden in at least one respect — he’s been trying to outlaw the practice, too.

    Underscoring the moment, Ted Kennedy and Patrick Leahy both went up to Lindsey afterward to thank him for his statement. That’ll probably cost Lindsey the support of a few more of the paleocons in his party back home, but it was a moment in which the senators rose, however temporarily, above the partisan mire. And I’m proud to have a senator who can inspire such responses.

  4. Gordon Hirsch

    Agreed. At least Graham could separate the job from a single issue, and remind Congress that they make laws, not Mukasey.
    The very idea that a vote for Mukasey is a vote for torture is exactly the kind of gross dumbing-down that makes us look like simpletons to the rest of the world. For a society that supposedly thrives on multi-tasking, we can’t seem to allow for the possibility that it takes more than one issue to define a debate.
    As a so-called moral nation, if we truly stand against all means of torture (and apparently we do not), make it against the law and charge everyone with upholding the law, Mukasey included.
    That puts the decision squarely in the hands of Congress, where it belongs, if they have the guts to decide it.
    And if it turns out that we support some means of torture, but not others, let Congress define that. It’s not up to Mukasey to decide for us. And its not a matter of semantics, either.

  5. bud

    You are kidding aren’t you Brad? Graham’s actions were the least principaled of anyone. If he oppossed torture he should have voted NO on Mukasey. Graham is a super duper partisan Republican hack. Any arguement to the contrary is laughable.

  6. barry levine

    The job-description for U.S. senator involves representing their constituents in debates and votes. It doesn’t involve campaigning for a next job. Why should that be done during working hours?

  7. Karen McLeod

    Senator Graham is truly a senator to be proud of. Although I disagree with him in many areas, I will almost certainly vote for him. He has shown honor and judgement, and he’s not afraid to vote his conscience, even when its unpopular.

  8. Gordon Hirsch

    OK then, bud. Here’s a “laughable” argument in support of Graham and Mukasey, among others, from Kevin Hayden’s “American Street.”
    “If Mukasey says it’s torture, he places his predecessors, some folks he supervises and his superiors at risk of prosecution. If he says it’s not torture, he’ll not be confirmed because he’ll be wrong on an important matter. If he aims to hint of his disapproval while avoiding legal prosecutions, well, that’s what Mukasey has done. And he may get shot down for choosing a political answer instead of the truth.
    Mukasey didn’t cause the problem. His predecessors and superiors did. So by authorizing torture, they not only have put our entire military at risk and harmed our nation’s reputation, but they’ve made it impossible for anyone to be confirmed as Attorney General without immediately putting his appointer at risk.
    Who wants to take on a no-win situation like that?”
    A vote for Mukasey equals a vote for torture? Maybe it equals a vote for understanding the consequences of one’s actions, which is more than we get from Congress most days.

  9. SGM (ret.)

    Mukassey’s replies to all the questions on this issue were only to make the same point that Gordan and others made above. That his place was not to make the law or settle the issue in question about water boarding. That it was and is Congress’ place to do so.
    As for bud’s point: that’s exactly the problem, but from the wrong direction. Law is not (or rather should not be) made by confirming or not confirming this or that nominee, but rather by members of both houses of the legislature. The principled vote is the one made on the floor either for or against a proposed bill.
    Using the nomination process to “make law from the bench” is the cowards way to dodge the issue.

  10. Gordon Hirsch

    Thanks, SGM. … Not to sound conspiratorial, but it’s also possible the entire “torture” line of questioning was a partisan setup, designed to put Mulkasey in the position of declaring Bush, past AGs, the CIA, our military, and anybody else who indulged in waterboarding, to be criminals (which they may be under current anti-torture law, domestically and internationally.) Regardless, if Mulkasey agreed waterboarding was torture, it could be interpreted as legal precedent, opening the door to a flood of lawsuits by human rights groups and creating a world stage upon which the US would be tried as hypocritical and criminal.
    No matter how he answered the question, Mulkasey was damned from the start.

  11. bud

    Everybody’s missing the point on this issue. Clearly waterboarding, a form of drownin, is a form of torture. The senators that asked that question were merely trying to understand if the candidate for attorney general could answer a straight-forward question with an honest, non-political question. He failed utterly to do so. There is no need to pass a law to define this as torture any more than we need laws to define hate crimes. Conservatives don’t have any problem understanding that concept. The senators who asked this question were merely trying to determine if Mulkasey agreed with their perception of the state of the law. If anyone in the admistration is indeed responsible for waterboarding then they need to be prosecuted and/or impeached.
    Now let’s turn to Senators Graham and McCain. They claim to be oppossed to torture, including waterboarding, yet they cannot vote against a candidate who is evasive about something that’s clearly torture. That is partisan politics, period. The fact that they want to pass a law that specifically defines waterboarding as torture may be commendable so that we have no ambiguity on this, but it is not really necessary. The only ambiguity seems to be with the administration. Everyone else seems to understand this sadistic practice is torture. So I find it obsurd to suggest that these senators are off the hook in allowing a potential torture supporter to become attorney general simply by proposing an unnecessary law. Both senators are clearly partisan hacks by voting in such a way as to not make the administration look bad. This is much worse than a non-vote for something that was a foregone conclusion.

  12. bud

    “If Mukasey says it’s torture, he places his predecessors, some folks he supervises and his superiors at risk of prosecution. If he says it’s not torture, he’ll not be confirmed because he’ll be wrong on an important matter.
    If his predecessors broke the law they SHOULD be prosecuted. If he says it’s not torture he SHOULDN’T be be confirmed. What kind of argument is that?

  13. SGM (ret.)

    You’re absolutely wrong to claim that the questioning was “straight-forward…honest [and] non-political.” It was nothing but.
    We are a nation of laws not “feelings of the moment.” The guiding principle is, if it’s not written in law, it’s not illegal. To be sure, as laws are applied, legal precidence is set, but that is an evolutionary process which starts with written law and not the fundamental starting point to make informal “I-feel-this-way-today-law.”
    So, as to your point that no law is necessary to make torture illegal, are you serious? Surely you wrote that faster than you were thinking.
    That is the whole problem with this issue. Almost none of our legislators will commit to the position that all forms of torture shoule be illegal and legally state a binding definition of what torture is. This cowardly behavior is both liberal and conservative. They all (or most of them anyways) want to have their water boarding and eat it too.
    To be frank, I believe that most of them are too pragmatic to commit to a position that they would never resort to torture under any circumstances, and this is why they will never (or no time soon) pass any laws with teeth on this issue. They all just wanted to use Mukassey to cover their backsides politically.
    This is probably the real reason why not a single candidate for president was at the vote. They each and every one, want to keep thier options open should they win.


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