Calhoun’s Can(n)ons, The Bay News, Tolosa Press, SLO, CA, for November 23, 2007
The name was just out of reach, whispering up from the L.A. Times story on the nomination and confirmation of Michael Mukasey to take over duties as the nation’s Top Cop. The paper noted that Senators Feinstein and Schumer praised Mukasey as someone who “ . . . would be a powerful antidote for the Justice Department, still reeling from Gonzales’ two-year, politically charged tenure.”
But it was deja vu that flickered in my mind when Senator Schumer, who, with Feinstein, broke Democratic ranks to vote on confirming Mukasey’s nomination, observed: “Judge Mukasey is not my ideal choice . . . “ but he was “. . . far better than anyone could expect from this administration.”
And in a separate Viewpoint editorial in the Times, I began seeing everything twice when Senator Feinstein added: “I believe Judge Mukasey is the best nominee we are going to get from this administration and that voting him down would only perpetuate acting and recess appointments, allowing the White house to avoid the transparency that confirmation hearings provide and to diminish effective oversight by Congress.”
It was then that the ghost of G. Harrold Carswell rose from the morning paper.
For those of you too young to remember, in 1970 President Nixon nominated Judge Carswell for a slot on the Supreme Court. During the confirmation hearings, it soon became clear that Mr. Carswell was, --Oh, dear, how can I put this?-- outstandingly mediocre, shall we say? Indeed, so many people at the time pointed out just how outstandingly mediocre Mr. Carswell was that Senator Hruska had to rise to the good Judge’s defense by observing that since there were “ . . . a lot of mediocre judges and people and lawyers . . . they [were] “entitled to a little representation” on the court, too.
It was a reverse Lake Wobegon effect, and also a guffawing, coffee-through-the-nose moment. And here we are again, only this time we’re faced with a whole administration of mediocre incompetents. On the other hand, since a good chunk of America consists of bungling mediocrities, then like Carswell, this administration is surely representing that constituency very well indeed.
But is “good enough” really . . . good enough?
In addition, one of the key sticking points on Judge Mukasey is that he is apparently having a hard time figuring out whether he believes waterboarding is “torture,” and if it is, is it “illegal.”
His careful dance around the word isn’t mere semantics or politics. The Washington Post noted that “[waterboarding] dates at least to the Spanish Inquisition and has been prosecuted as torture in U.S. Military courts since the Spanish American War. . . . “ and “. . .after WWII, the United States prosecuted Japanese officers who presided over waterboarding as war criminals.”
So, why would that be a critical point for Mukasey? According to the Washington Post again, “Officials have said the Bush administration authorized the use of waterboarding on at least three prisoners kept in secret detention by the CIA after the Justice Department [i.e. the clueless and bungling and now gone Alberto Gonzales] said it was legal . . .”
Oops. And therein is Congress’ dilemma. Do they confirm as top cop a man whom some senators think may not be the best choice, but is the best we can expect, a man who, if he states that waterboarding is torture and hence illegal, would be forced by his oath of office to pursue, for alleged war crimes, folks in the very administration who nominated him in the first place? Or do they let him skate on defining torture now, then quickly pass a new law after his confirmation that (post facto) defines waterboarding as torture, thereby letting the administration off the legal hook – can’t prosecute someone for past “crimes” that weren’t exactly “crimes,” now can you?
Well, no Shinning City on a Hill, no Best and Brightest for us. Nosir! Not in the Land of Carswellian Good Enough, home of an administration whose torture orders on “rendered” suspects has already put them in the same company as Pol Pot.
Which, when you come to think of it, really is a “Heck of A Job, Brownie, a Heck of a Job!”