The end is near for the Democrats' sorry handling of Michael Mukasey's nomination to be Attorney General, but that doesn't mean they are ready to close the book on the most recent debate over torture. The Senate Judiciary Committee voted to confirm the New York judge to head the Justice Department Tuesday, sending his nomination to the Senate floor, where it is expected to win broad support. That should end another humiliating national security-related defeat for the party, leaving members free to move on to issues where they stand a better chance of outmaneuvering Republicans, such as health care for kids or tax reform.
The Democrats, however, have an uncanny ability to milk humiliation out of national security debates, and behind the scenes the party's top Senate leaders are arguing over whether to pursue the issue of torture while they have the country's attention. Even though the party failed to block Mukasey over his refusal to state definitively that waterboarding is illegal, some Democrats believe they can win a straight vote to criminalize the harsh interrogation technique. Others fear that a renewed fight over torture would end not just in another defeat, but in an implicit congressional stamp of approval for the very practice they want to outlaw.
Two Democrats, Charles Schumer of New York and Diane Feinstein of California, joined the Judiciary committees' nine Republicans in backing Mukasey's nomination, and both are now eager to show that they view waterboarding as torture and illegal. Schumer in particular has been arguing for a vote on an amendment authored by Massachusetts liberal Teddy Kennedy that would outlaw waterboarding. "Schumer's been pushing this in leadership meetings," says one Democratic leadership aide, "and behind closed doors he's been making the case that we need to have this vote."
Schumer heads the Democrats' campaign committee for the Senate in 2008, and his support for Mukasey has enraged some on the left. Activists in the blogosphere have launched a "donor strike" against the DSCC to protest. Schumer's office did not return calls seeking comment, but his allies say he believes a vote on Kennedy's amendment can pass if it is attached to a bill reforming domestic eavesdropping being considered by the Judiciary committee this week.
Other Democrats think Schumer is just looking to make up for his support of Mukasey. They fear that attaching a torture ban to the eavesdropping bill would not only give Republicans another chance to beat up on Democrats, but would end with another humiliating defeat. Worse, they say, a failure this time could be more damaging: losing a straight up-or-down vote over waterboarding would implicitly legalize it, they say.
Republicans meanwhile are watching and hoping Dems opt for a fight on torture. Says one G.O.P. leadership aide: "It's like that scene in Dumb and Dumber where the one guy says to the other, 'We're in a hole, Harry, and we just gotta keep digging until we get out.'" Republicans view just about any national security debate as preferable to another fight over the State Children's Health Insurance Program or domestic issues where their backing is thin.
But Democrats may be wising up. The staffers of top Democrats, including Kennedy, majority leader Harry Reid, minority whip Dick Durbin, and Intelligence committee chief Jay Rockefeller met Monday with representatives of leading human rights organizations to discuss the wisdom of going forward with the Kennedy amendment. One participant said the groups argued against pushing a torture ban unless the votes for passage were sure to be there. The eavesdropping bill is scheduled to be marked up in the committee on Thursday.