Whitehouse principled in vote on Mukasey

U.S. Sen. Sheldon Whitehouse, who eventually decided to oppose confirmation of Michael Mukasey as attorney general, said he'd been "deeply torn" in trying to make up his mind.
But I didn't appreciate how close the call was until I interviewed the Rhode Island freshman Democrat last week.

In an impressive speech on the Senate floor on Oct. 31, Whitehouse exuded praise for the retired federal judge whom Republican President Bush tapped to succeed Alberto Gonzales at the helm of the troubled Justice Department.
Whitehouse called Mukasey "a brilliant lawyer, a distinguished jurist ... a good man."

But Whitehouse, a former U.S. attorney and state attorney general, denounced Mukasey's refusal in testimony before the Senate Judiciary Committee to say waterboarding is torture and to label it unconstitutional.

The CIA used waterboarding, an interrogation technique which simulates drowning, against a number of terrorist suspects after 9/11. The Justice Department held the practice legal.

I admire Whitehouse for sticking to principle, and, as he announced his decision on the Senate floor, I thought it a nice touch that he used a quote from Winston Churchill as the fulcrum of his argument.

Whitehouse said America must stand behind its ideals.
He cited a metaphor Churchill employed as he sought in 1938 to shake Britain from its somnolence toward the Nazi menace. Churchill, a member of Parliament but not yet prime minister, spoke of "this famous island" descending a stairway leading to a dark gulf.

Whitehouse quoted:

"It is a fine broad stairway at the beginning, but after a bit the carpet ends. A little farther on there are only flagstones, and a little farther on still these break beneath your feet."

Now Whitehouse wondered:

"Will we join that gloomy historical line leading from the Inquisition, through the prisons of tyrant regimes, through gulags and dark cells, and through Saddam Hussein's torture chambers? Will that be the path we choose?"

He declared, "I hope not."

Whitehouse is a member of Senate Judiciary. When Mukasey testified there, Whitehouse's questioning spotlighted the nominee's reluctance to take a forthright stand on waterboarding. "I don't know what's involved in the technique," Mukasey said. "If waterboarding is torture, torture is not constitutional."

Whitehouse accused him of "a massive hedge" and tried again:

Question: Do you have an opinion on whether waterboarding, which is the practice of putting somebody in a reclining position, strapping them down, putting cloth over their faces and pouring water over the cloth to simulate the feeling of drowning - is that constitutional?

Answer: If it amounts to torture, it is not constitutional.

A "very disappointed" Whitehouse suggested the reply was a semantic dodge.

When Whitehouse announced he would vote against Mukasey, it seemed possible that all the Democrats on the committee might line up that way; Mukasey's situation looked dicey.
As it turned out, though, two Democrats - Senators Charles Schumer of New York and Dianne Feinstein of California - joined committee Republicans in support of Mukasey. Last Tuesday, the panel approved him, 11 to 8. (On Thursday, the full Senate voted, 53 to 40, to confirm the nominee. Whitehouse and Sen. Jack Reed voted no.)

Whitehouse, 52, told me that figuring out what to do on Mukasey was the toughest decision he has had to make since he joined the Senate in January.

Whitehouse can be heavily partisan, but his opposition to Mukasey seemed to transcend any impulse to give the GOP president a hard time. Indeed, he'd called it a "fine" appointment and acknowledged a need to get on with rebuilding the Justice Department.

But then there was that matter of torture, something he says America traditionally has abhorred and avoided.

When I asked Whitehouse to pinpoint what he meant when he said the nomination left him "deeply torn," he replied: "Put it this way. I went home one night and I was so torn that I really didn't know which way to go. I was going back and forth, back and forth."

So, to sort things out, he took a yellow legal pad and a ball point pen and drafted a speech in favor and a speech against.

"As I wrote the speech as to why I would vote for Mukasey, because the Department of Justice needed leadership and it was such an important institution of government and all those things, I just didn't feel comfortable. It wasn't right.

"And now when I wrote the speech voting against Mukasey it just came rolling out. It really felt right. And so I went in the next morning with kind of a clear conscience."

On Tuesday, the day we spoke, The New York Times carried an essay by Schumer, who had recommended Mukasey to the White House, then hesitated, then decided to stick with him in the Judiciary Committee vote. (You may remember Schumer, a top Democratic campaigner, coming here to talk up Whitehouse last year.)

Schumer wrote that the Justice Department is in "shambles" and that even Mukasey's opponents - Schumer specifically mentioned Whitehouse - praise him.

Schumer continued:

"Should we reject Judge Mukasey, 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. To accept such an unaccountable attorney general, I believe, would be to surrender the department to the extreme ideology of Vice President Dick Cheney.... All the work we did to pressure Attorney General Alberto Gonzales to resign would be undone in a moment."
Indeed, Schumer went on to raise several other good points.

So, I pressed Whitehouse about his opposition: How could he know he was doing the correct thing?

"You never do in this business," Whitehouse said. "But you do, I guess, a head check, a gut check, and a heart check and you see where those come down."

That's what writing the two speeches was about, he said.
Now, about that Churchill reference: Whitehouse said he keeps a book - it looks something like a diary - in which he jots down quotes he runs across and likes. Occasionally he'll photocopy something and put that in, but usually he handwrites it, and that was the case with this quote, which he'd come upon years ago in an anthology of Churchill speeches.

Whitehouse said that he occasionally leafs through his collection in search of inspiration. He said he had this particular quote in the back of his head, browsed through his book, found it, and thought it perfect for the occasion.

I read the full speech, delivered in the House of Commons after Germany absorbed Austria and threatened Czechoslovakia. I was struck by the cadence and by several phrases or images that would gain immortality in later speeches, after Churchill became prime minister and World War II raged, only two decades or so after the Allies had defeated Germany in World War I.

Most notably, he said in this March 24, 1938, address:
"If mortal catastrophe should overtake the British Nation and the British Empire, historians a thousand years hence will still be baffled by the mystery of our affairs.

They will never understand how it was that a victorious nation, with everything in hand, suffered themselves to be brought low, and to cast away all that they had gained by measureless sacrifice and absolute victory - gone with the wind!

"Now the victors are the vanquished, and those who threw down their arms in the field and sued for an armistice are striding on to world mastery."

Now, he said, was the time to rouse Britain with a chance still of preventing war or of winning if war came. He said a great British nation, rising in its ancient vigor, could "even at this hour save civilization."

In 1940, Prime Minister Churchill said, "Let us therefore brace ourselves to our duties and so bear ourselves that, if the British Empire and its Commonwealth last for a thousand years, men will still " say, ‘This was their finest hour.'

I asked Whitehouse: Suppose America lasts for a thousand years, or historians a thousand years from today look back on America, what will they say of this particular era in the life of the nation?

The senator replied:

"I think they will say that this was an era in which we lost our way, an era in which we suffered a president who called us to our basest influences and fears rather than our highest motives and aspirations.

And I hope they will say that, despite that, the country nevertheless recovered its bearings, recovered its faith, and retook its place as a nation that is a model and beacon to humankind."

A very good answer.

By:  M. Charles Bakst
Source: Providence Journal