Last week was another very tough one for Congress watchers, coping with the premature deaths of former Rep. Peter Hoagland (D-Neb.) and one-time senior Congressional staffer Joe Crapa. [IMGCAP(1)]
Hoagland was one of the most decent and principled Members of the House I have known, someone dedicated to public service and passionate about justice, whose talent was recognized by his party early on and rewarded with a seat on the Ways and Means Committee. But his great career in the House was derailed by the Gingrich revolution, with a heartbreaking loss by 2,000 votes in 1994. That was not an easy year to run as a Democrat among Nebraskans, who lost a great representative.
Crapa was a role model of public service, with decades working in Congress. He was a wonderful, bright, ethical, caring guy, the kind you hope will proliferate on Capitol Hill but who always seem in short supply, someone who left the Hill not for a big-bucks lobbying job but to work for international religious freedom. He died at 63; Hoagland just a few years older. How unfair. And a loss of two people with passionate views but a real understanding of the value of pragmatism in politics.
Crapa’s varied Hill career included a stint running Sen. Charles Schumer’s (D-N.Y.) staff. Schumer, of course, is front and center in the news this week, along with Sen. Dianne Feinstein (D-Calif.), over their common views on Michael Mukasey’s nomination to be attorney general, a view not shared by their Democratic colleagues on the Senate Judiciary Committee or by a large slice of their party’s base. Indeed, the blogosphere is burning up with commentary on their joint apostasy.
How could these Senators support a man who didn’t really know what waterboarding is and could not commit to declaring that it is torture — despite its history going back to the Spanish Inquisition, and the fact that the United States prosecuted Japanese soldiers for war crimes for using it against Americans in World War II. On issues of torture, I defer to Sen. John McCain (R-Ariz.), who knows a lot more about the subject than the rest of his colleagues (and a lot more than his presidential rivals like Rudy Giuliani, Mitt Romney and Fred Thompson, who have shamelessly pandered to their base instincts and base voters by in effect endorsing many forms of torture to show how tough they are). Waterboarding is torture, plain and simple. And on this issue, Mukasey was flat-out wrong, and embarrassingly so.
Nonetheless, Schumer and Feinstein were right. The critical question here is: What is the alternative if Mukasey’s nomination fails? Perhaps President Bush would follow through on his threat and refuse to nominate a new attorney general, leaving Peter Keisler, not to be mistaken as a part of the solution for an out-of-control Justice Department, in charge in an acting capacity. Or the president might choose a new nominee — who almost certainly would be someone with sharper edges and a more partisan bent, both a Bush loyalist and someone selected to poke a sharp stick in the eye of his adversaries.
Would that really be better? Other questions follow: If Mukasey failed, would there be an attorney general more likely to weigh in against evasion of the law or propriety on the treatment of prisoners? The answer is no. And what about the most important set of issues facing the Justice Department: the rot inside a department thoroughly politicized, in policy areas like civil rights and voting rights, and in politics through the increasingly rancid U.S. attorney scandal?
The House Judiciary Committee hearing on the questionable behavior of federal prosecutors in Alabama, Pennsylvania and other places dramatized even more a department with serious signs of rot. The Alabama case is particularly troubling, and more evidence is emerging of a near-cabal of partisan hacks and ideologues protecting their own and punishing their adversaries in questionable and dishonest ways. Former Attorney General Richard Thornburgh raised major questions about excessively harsh and aggressive investigations in Pennsylvania into Democratic officeholders’ behavior by an out-of-control U.S. attorney.
Thornburgh’s tough testimony was trashed by a succession of House Judiciary Republicans as outrageous, shameless behavior by a lawyer protecting his client, one of those Democrats. But anyone who knows Thornburgh at all knows how ridiculous that charge is. Thornburgh, a plenty tough partisan as a Republican governor of Pennsylvania, is a man of real integrity, clearly outraged by what he sees as a misuse of prosecutorial power. More and more, we are seeing that the bigger scandal was not in the U.S. attorneys who were fired but those who were not.
Somebody has to get to the bottom of this and make a serious effort to clean house. None of us can say for sure whether that somebody is Mukasey. But by all accounts he is a man of honesty and integrity, and not a political hack. He is not a longtime crony of the president, somebody who will put loyalty over principle. I believe he cares about the integrity of the system of justice in America.
There are many things about Mukasey that trouble me, including what may be too great a propensity to favor executive power and too great a willingness to suspend basic constitutional rights to fight terrorism. But as Schumer has said, no nominee from President Bush is going to meet those tests. Bush has won the political battle on the Mukasey nomination, but he can’t really know for sure what he has won. Mukasey is by far the best bet to do something to cure the rot in the department. On this one, Schumer and Feinstein chose the right course.
Norman Ornstein is a resident scholar at the American Enterprise Institute.