R.I.P.: Senate Confirmation Process

The Senate Judiciary Committee votes today on the nomination of Judge Michael Mukasey as Attorney General. The Committee is expected to approve the nomination, despite bumps in the road last week over Mukasey's refusal to state whether waterboarding is torture and prohibited by federal and/or international law. Democrats Charles Schumer and Dianne Feinstein announced their intention to vote for Mukasey, essentially ending the threat that the nomination would be defeated. Schumer has an op-ed in The New York Times this morning explaining his decision to vote in favor of the nomination (H/T: Marty Lederman). Schumer proceeds on the theory of "the Devil I know beats the Devil I don't." If Mukasey's nomination is defeated, Schumer argues, "President Bush has said he would install an acting, caretaker attorney general who could serve for the rest of his term without the advice and consent of the Senate." And this acting AG, presumably, would be worse (from the Democrats' viewpoint) than Mukasey.

Schumer's and Feinstein's change of heart follows the President's repeated insistence last week that the Democrats were treating Mukasey unfairly. The President insisted questions about the legality of waterboarding under federal law were unfair questions for the nominee for Attorney General of the United States. Mukasey could not opine on the legality of waterboarding because he had not been read-in to the program, which is important and "within the law" (Ed: And if the President says it is within the law, we do not need to ask the AG) and because Mukasey does not yet know if waterboarding is part of the interrogation program. In the end, I believe these essentially demagogic arguments swayed enough Democrats.

This put one more nail in the coffin of Senate confirmation as a meaningful process or check on the appointment power. More after the jump.

The confirmation process for judges, especially Supreme Court Justices, has become a joke. It is little more than an opportunity for political grandstanding on all sides, especially the non-presidential party, as members of the committee ask rambling, incoherent questions (couched in long speeches, of course) for political effect, knowing the questions never will be answered. Nominees repeatedly, and without penalty, refuse to answer even the most general and abstract questions about constitutional and legal doctrine on the ground that the issue could come up in a case before the Court and the nominee does not want to prejudice her ruling in that case. If we learn anything meaningful about the nominee's legal views, it is mostly by accident. (Vik Amar disagrees to some degree).

President Bush just took this to the next level. It now is "unfair" to ask the person who will be the chief federal law-enforcement officer for his views on what federal law does or does not allow. We now cannot ask questions of a cabinet or executive-branch nominee about his specific areas of policy expertise, the issues over which he will assert authority and control. The nominee does not yet know all the details of programs and policies he will encounter once he enters the executive branch (which, of course, the White House is not going to share with the nominee or with those in the Senate who would question her about it) and he does not know what the President wants as a policy matter, which, Bush implies, is part of the officer's analysis. If that is true, then what can the Senate ever use to evaluate a nominee, other than the fact the President wants this person?

I am not taking a view of whether Mukasey is qualified to be AG; I am trying to make a process point. Schumer is willing to confirm despite finding Mukasey's refusal to answer the waterboarding question, in his own words, "unsatisfactory," because otherwise the President will make a recess appointment of an AG who never will be held accountable before the Senate. But if Schumer (and the rest of the Democratically controlled Senate) is going to vote for whomever the President puts forward despite such serious reservations, the confirmation provides no meaningful accountability. It provides the appearance of accountability, by allowing Schumer to make grand statements and to appear to be vigorously questioning the nominee. But the result is the same--the President gets who he wants, regardless of that nominee's views.