The Senate runs into the arms of Michael Mukasey.
Senate hearings are at their worst, perhaps, when the senators have agreed in advance on a cheery outcome, and they're willing to accept the reality as defined by the guy in the witness chair to get it. Today, we have senators falling over themselves not only to signal their respect for Michael Mukasey, the president's pick for attorney general, but also to thank him for deigning to take the job. Pretty much all they need to make sure of today is that Mukasey is not Alberto Gonzales. Check. Vote to confirm.
Mukasey disarms the Democrats from the start by offering concessions they have been waiting for lo these long seven years. In his opening statement, he says, "Protecting civil liberties, and people's confidence that they are protected, is part of protecting national security." This is either a platitude or a repudiation of the administration's entire hawkish outlook. In an effort to push Mukasey further down the latter path, Sen. Patrick Leahy, D-Vt., asks him about "the so-called Bybee memo"—the 2002 opinion from the Office of Legal Counsel that approved a whole range of coercive tactics, such as waterboarding, by insisting that torture isn't torture unless it causes physical damage amounting to "death, organ failure or the permanent impairment of a bodily function." What does Mukasey think about this defining-down of torture? "The Bybee memo was worse than a sin, it was a mistake," the nominee says. "It was unnecessary."
Leahy likes this answer. He asks if Mukasey repudiates the memo as contrary to law and also to "the values this country stands for." Mukasey replies, "I do." Ringbearer, please.
But the Mukasey-Senate love match doesn't go all that deep. Leahy next asks about the secret February 2005 memos signed by Gonzales, which re-loosened the reins on interrogators. (According to the New York Times, which broke the story, the memo approved tactics including head-slapping, freezing temperatures, and waterboarding again.) Unlike the Bybee memo, the 2005 opinions are still law. And here Mukaskey won't say he's planning to change that. "I'm certainly going to examine the underlying memos and the underlying facts," he answers. "But I have not been read in—I think that's the Washington expression—to any of the classified information" relating to interrogation.
This is a punt. It is also exactly the right move for him, because the senators can't do anything about it. Many such moments follow. Sen. Arlen Specter, R-Pa., asks Mukasey about the right to habeas corpus, to go in front of a judge if you're being detained indefinitely. Does Mukasey think the Guantanamo detainees have a constitutional right to their day in court, even though Congress limited their habeas rights last year?
Mukasey isn't going down that road, either. "That question is squarely before the court in Boumediene," he says, referring to the Supreme Court's upcoming Guantanamo case this term.
"You're punting now," Specter chides.
"That's right," Mukasey says. The Justice Department has filed briefs in Boumediene, he continues, and he thinks that's reason for him not to answer.
"I filed a brief, too. That doesn't mean anything," Specter retorts. He knows he's supposed to make nice, but apparently he can't quite help himself. Nor should he—there is no reason Mukasey can't answer this question. He's not a Supreme Court nominee who'd be tipping his hand about how he'd rule in a future case. The Justice Department he's about to head up is fighting Boumediene's efforts to get into court as hard as it can. If Mukasey disagreed with that stance, he'd never have been tapped for this job. So why can't he announce the legal argument his soon-to-be lawyers are making?
Emily Bazelon is a Slate senior editor and writes about law, family, and kids. Her forthcoming book, Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Empathy and Character. Find her at firstname.lastname@example.org or on Facebook or Twitter.
Photograph of Michael Mukasey by Mark Wilson/Getty Images.