Liberals are right, even if hypocrites, in backing Mukasey

I'm not used to agreeing with Sens. Chuck Schumer and Dianne Feinstein on anything regarding the Justice Department. So imagine my surprise now that these Democrats and I agree that Michael Mukasey deserved to be confirmed as attorney general.

When Schumer and Feinstein helped run Mukasey's predecessor, Alberto Gonzales, from office, I defended the attorney general against an attack that I thought was dishonest and political. I mention it only because it's worth remembering that liberals tried to justify their assault on Gonzales in the noblest of terms. They had to portray their opposition as part of a larger cause for, while the scandal that ended Gonzales' tenure was about fired U.S. attorneys, it became clear that he hadn't broken the law or exceeded his authority.

The Democrats insist that their jihad against Gonzales wasn't about politics or hurting President Bush or discrediting a Hispanic Republican. It was about torture. Yeah, that's it. What was troubling, they said, was that "Torture Boy" (the liberal blogs' condescending nickname for Gonzales) gave Bush too much power and he himself condoned torture.

Some of the criticism of Gonzales is justified. He was a horrid communicator. And while I thought the former attorney general got a raw deal from Senate Democrats, I have also always believed that Gonzales and Co. gave a raw deal to terrorism suspects. In March, during my last interview with Gonzales, we discussed a column in which I had written that terror suspects were entitled to habeas corpus, which prevents the government from locking people up without charges. I told Gonzales terror suspects were entitled to these rights. We agreed to disagree.

But these are administration policies. Gonzales merely executed them. Once Gonzales resigned, President Bush chose Mukasey, a retired federal judge, to replace him.

Enter Schumer and Feinstein, who played a pivotal role in helping get Mukasey's nomination out of the Senate Judiciary Committee and on to the full Senate. So you might assume Mukasey had gone on record as being opposed to torture and intent on limiting presidential power.

Not even close. Much to the disappointment of civil libertarians, Mukasey went in the other direction during his confirmation hearings. He maintained that the president could ignore certain laws if they interfere with his constitutional authority "to defend the country," he refused to describe the simulated-drowning process known as waterboarding as a form of torture, and he dodged most of the questions about the administration's domestic spying program.

It was positively Gonzalesque. And it didn't get by the 40 Senate Democrats who voted against the nomination.

This is about how hard it can be to live up to one's rhetoric in politics. It's about Feinstein and Schumer and the four other Senate Democrats -- Evan Bayh of Indiana, Tom Carper of Delaware, Mary Landrieu of Louisiana and Ben Nelson of Nebraska -- who broke ranks to vote to confirm Mukasey, saying one thing when it suited their purpose of getting rid of Gonzales and then tap-dancing in the other direction in order to back Mukasey. And it's about the built-in conflict that Americans are going to have as long as we nominate and confirm attorneys general while we're at war with terrorists.

I don't fault Mukasey for not wanting to limit presidential authority or define waterboarding as a form of torture. I have come to understand that, in the post Sept. 11 era, any nominee for attorney general has to keep his or her options open -- something that the former occupant of the office tried to tell us before he was hustled out the door.

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