The nomination of Judge Michael Mukasey to be the next Attorney General of the United States ought to have been a routine procedure in the United States Senate this past week. Mr. Mukasey has had a long and distinguished career and by any standard, including the invariable comparison to Alberto Gonzalez, should have weathered the “advise and content” role of the US Senate with flying colors. But this is no normal circumstance. President Bush is vulnerable due to his low-approval ratings and lame-duck status and this is today’s, not yesterday’s, Democrat Party, a group devoted to hearings and political posturing at pretty much all costs. The fact that Mukasey’s confirmation was in serious doubt most of this week and is now expected to just squeak by, speaks volumes about the priorities of today’s Democrats. The adoption of those priorities will weaken the country they pretend to serve.

   The good news is that Democrat Senators Diane Feinstein and Chuck Schumer have now indicated they will vote the nomination out of committee, but Vermont’s Patrick Leahy has said he will vote no. Schumer was placed in a doubly-embarrassing position, having been both Judge Mukasey’s home-state Senate sponsor and he also was widely quoted in 2004 as having failed to rule out torture as an occasional necessity in a post-9/11 world. “I think there are probably very few people in this room or in America who would say that torture should never ever be used, particularly if thousands of lives are at stake,” he said at the time. But this is 2007 and Bush is weak. Schumer, who never met a tv camera he failed to run toward, was strangely silent as his fellow Democrats pondered a Mukasey torpedo as the week drew to a close. No doubt Schumer deserves credit for his “yes” vote. But was the deciding factor simply the political impossibility of doing otherwise? Nobody knows.

   The key sticking point was Mukasey’s refusal to call the infrequently used pratice of water-boarding to be torture, even though he had previously stated that torture “violates the law and the Constitution, and the president may not authorize it, as he is no less bound by constitutional restrictions than any other government official.” This did not matter to Democrats Kennedy, Leahy and Durbin. All of their concern for order and accountability in the Justice Department rang hollow, in the rush to score political points against Bush.

   Let’s be clear. Any discussion of interrogation techniques in open hearings gives “aid and comfort” to the enemy. Parsing torture under the klieg lights further diminishes the uncertainty of what terrorists may face when caught, and undermines our intelligence and interrogation units flexibility in facing individual circumstances or impending disaster that cannot be postulated in a hearing room. Schumer was right in 2004. His colleagues are wrong in 2007. Despite the fact that waterboarding has rumored to be used only twice, over 70% of human intelligence has been received through detainee interrogation, according to the Wall Street Journal’s account of CIA Director Michael Hayden’s words. Flexibility in these situations gives maximum ability to protect the United States. The President should have the power to act and to explain his actions later, for the good of the country.

   The Senate may have dodged a bullet by confirming Mukasey, which it is expected to do next week. But it has set a terrible precedent in the reasons for opposing his confirmation. As President Bush said last week, this kind of behavior on the part of senators could assure that “no nominee” could be confirmed. It is difficult to resist the conclusion that Democrat Senators wanted to send exactly that message. So much for getting the Justice Department up and running again.

John Pendleton