The confirmation of Michael Mukasey as the new attorney general is now assured. That's probably good news for the Justice Department, which has been without an effective leader since early this year. But in the moment, it will not be good news for Democrats.
That is because Mukasey's confirmation will be seen as yet another insult to the anti-Bush Democrats who expected everything to change after the elections of 2006 — and are increasingly frustrated by their party's inability to frustrate the president.
In a way, Mukasey's confirmation was always inevitable.
The votes were there on the Senate floor, where a simple majority suffices, and where the necessary crossover Democrats were predictable from the start.
The rougher water was in the Senate Judiciary Committee, where Chairman Pat Leahy of Vermont and most of the other Democrats were ready to block Mukasey and leave Justice rudderless, rather than accept yet another episode of White House defiance.
Leahy & Co. had been open to the Mukasey nomination at the outset. But they felt ill-used on the second day of hearings, when Mukasey balked at answering questions about torture. The nominee said he could not define torture — or rule techniques such as waterboarding in or out — until he had seen all the classified documents on the subject. And as a mere nominee, he added, he had not yet seen the relevant information.
That remarkable assertion from a judge who had been handling terrorism cases for more than a decade clearly affronted the Democrats on Judiciary. What had been orchestrated as an easy confirmation for a consensus successor to the woebegone Alberto Gonzales suddenly became a fresh case of confrontation.
Initially, it seemed some bargain could be worked out that would satisfy the committee and expedite a vote. But it became clear that the White House saw Mukasey as a sure winner, meaning there was no reason to negotiate the terms of his confirmation. Refusing to do so would reinforce the prerogative of the chief executive, which had been battered by the Gonzales episode.
The tough line temporarily froze even the original champion of the Mukasey nomination, Charles Schumer, the senior Democratic senator from New York. Schumer found himself needing political cover just to vote for the man he himself had been pushing for the job for months.
Luckily for Schumer, he did not have to look too far or wait too long. California Democrat Dianne Feinstein, long a voice of moderation on the committee, stepped up to say she would vote yes. That gave the nominee the votes he needed — and gave Schumer the support he needed to also vote "aye." The two Democrats announced their intention together.
Frustrated Democrats now know how Republicans felt in the later Clinton years, when the man in the White House outmaneuvered GOP majorities in Congress on budget issues and foreign policy again and again. By picking off just enough votes from the opposition, and by framing each issue with an eye on public opinion (the "poll-driven presidency"), Clinton remained largely in charge, even as his adversaries tried to drive him from office.
No one should be surprised that, in the waning months of his presidency, George W. Bush is able to do much the same.