NJJN Online Commentary Feature 110807

A Senate firebrand rises above the fray

Historically, American politics tended to operate at the center regardless of ideological or philosophical differences between political parties. Over the past 25 years this has eroded to the point where governing today is all about politics and little about the consensus of the middle.

Dr. Gilbert N. KahnWhile Barry Goldwater in 1964 and George McGovern in 1972 might have been correct about some of the issues that were troubling America, both candidates were considered far too extreme to have been elected, let alone govern the country. Since the 2000 election of President George W. Bush and the events of Sept. 11, 2001, the country has moved into a state of greater and greater polarization.

The trend is to pin responsibility for this on the executive branch. Yet blame rests in both parties and within all branches of government. While clearly the intent of the Constitution was to place the power of most of the daily decision-making in the hands of the executive, the legislative and judicial branches cannot escape responsibility for their own intertwined involvements in most of the executive’s decisions.

The battle over renewal of the State Children’s Health Insurance Program has deteriorated far beyond a mere a traditional battle between Republicans and Democrats over federal spending priorities. The debate over renewal of the Foreign Intelligence Surveillance Act crossed not only partisan and institutional battle lines but also drew in the newly configured Supreme Court with at least some innuendos that the justices factored into the debate.

The nomination of Judge Michael Mukasey to be U.S. attorney general, however, gave clear evidence as to how political conflicts have overtaken politicians’ commitment to govern. It has also confirmed the growing desire on the part of Republicans and Democrats and the Senate and the president to place politics above institutional obligations and national needs.

The Senate Judiciary Committee’s vote to report out to the full Senate the nomination of Judge Mukasey came within one key vote of never reaching the Senate floor. The Mukasey nominating process was distinguished by outrage on all sides. Democrats were infuriated that the Justice Department had been politicized and demoralized during the tenure of Alberto Gonzalez. They were also frustrated by what they interpreted to be Mukasey’s acquiescence to White House interests in his views on torture, especially the practice of water-boarding. Judge Mukasey’s exceedingly conservative (or cautious) judicial temperament only frustrated partisan Democrats.

Sen. Charles Schumer (D-NY), who originally had proffered Mukasey’s name to the White House, found himself having to balance his newly arrived-at misgivings about Mukasey’s views on terrorism against his strong partisan leadership role within the Democratic Party. Schumer’s fellow Democrat, Dianne Feinstein of California, joined Schumer in supporting Judge Mukasey on the Judiciary Committee. It is quite conceivable that had Schumer decided to oppose Mukasey’s nomination, Feinstein might have been pressured by her colleagues to also withdraw her support or at least to abstain. This could have forced the committee to decide whether to report out Judge Mukasey’s nomination without a committee recommendation, or allowed Bush to make good on a threat to install a caretaker attorney general without the advice and consent of the Senate.

As Schumer explained in an op-ed article in The New York Times, while he shared many of the same misgivings that had been articulated by many of his Democratic colleagues, he was willing to confirm a qualified appointment in the name of governance.

Wrote Schumer: "I am voting today to support Michael B. Mukasey for attorney general for one critical reason: the Department of Justice — once the crown jewel among our government institutions — is a shambles and is in desperate need of a strong leader, committed to depoliticizing the agency’s operations.” And Mukasey, wrote Schumer, "would do much to remove the stench of politics from the Justice Department.”

It required Schumer, one of the most partisan Democrats in the entire Senate, to rise to the occasion and try to return some collegiality to the governing process. Both Congress and the White House are operating strictly along partisan and confrontational lines. Collegiality and a sense of the national interest have been discarded in the name of scoring points. If this type of political pettiness does not stop, and Schumer’s apparent sense of the "best interest” does not begin to prevail, this political stalemate might eventually create dangers to America’s national security.

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