Why the Democrats Did Not Filibuster (Updated)

The U. S. Senate has confirmed the appointment of Michael Mukasey as the third Attorney General of George W. Bush’s presidency:

WASHINGTON, Nov. 8 — The Senate confirmed Michael B. Mukasey as attorney general Thursday night, approving him despite Democratic criticism that he had failed to take an unequivocal stance against the torture of terrorism detainees.

The 53-to-40 vote made Mr. Mukasey, a former federal judge, the third person to head the Justice Department during the tenure of President Bush, placing him in charge of an agency that members of both parties say suffered under the leadership of Alberto R. Gonzales.

Six Democrats joined 46 Republicans and one independent in approving the judge, with his backers praising him as a strong choice to restore morale at the Justice Department and independently oversee federal prosecutions in the final months of the Bush administration

The four Democratic presidential aspirants in the Senate (Biden, Clinton, Dodd, Obama) did not come in to vote. The six Democrats who voted in favor of confirmation were: Evan Bayh (IN), Tom Carper (DE), Dianne Feinstein (CA), Mary Landrieu (LA), Ben Nelson (NE), and Chuck Schumer (NY).

There’s considerable anguish in the Left Blogosphere over the confirmation. Glenn Greenwald is baffled:

…four Senate Democrats running for President missed the vote, and all four had announced they oppose Mukasey’s confirmation. Thus, at least 44 Senators claimed to oppose Mukasey’s confirmation — more than enough to prevent it via filibuster. So why didn’t they filibuster, the way Senate Republicans have on virtually every measure this year which they wanted to defeat?

Numerous Senate Democrats delivered dramatic speeches from the floor as to why Mukasey’s confirmation would be so devastating to the country. The Washington Post said the “vote came after more than four hours of impassioned floor debate.”

Why didn’t the Democrats block the nomination? As Thoreau at A High Clearing observes:

…I recall that in the 1990’s the Republican committee chairs and majority leader discovered all sorts of arcane procedures and rules to pretty much block anything that they wanted. But under Democrats the leadership is unable to block, well, anything.

My experience has been that, when based on your premises you can’t understand a particular outcome, it may be time to alter your premises.

My assumption is that, when you’re talking about a U. S. senator, virtually every decision is based on political calculus. Is that supported by this outcome?

In Mary Landrieu’s case it almost certainly is. Sen. Landrieu is up for re-election in 2008 in a southern state that has just elected a Republican governor who is (gasp!) not white which suggests that Louisiana voters may be, er, somewhat dissatisfied with Democrats.

Ben Nelson was just re-elected with a strong showing in 2006 but he’s probably the most conservative Democrat in the Senate.

Tom Carper isn’t vulnerable, either, having been re-elected in 2006 overwhelmingly. He is, however, notably nonpartisan in a highly partisan Senate.

IMO Evan Bayh and Dianne Feinstein are probably two of the most competent and fair-minded members of the Senate.

Chuck Schumer’s seat is safe and he’s definitely not a “Democrat in name only”, indeed, I don’t think that either Dianne Feinstein or Chuck Schumer can reasonably be called DINO’s. Are Feinstein’s and Schumer’s votes merely idiosyncratic?

How can the Democrats’ unwillingness to filibuster be explained? My guess is that a lot of the posturing against Mukasey’s confirmation has been just that. The absence of the presidential aspirants suggests that either a) they didn’t consider the confirmation vote that important and/or b) they believed that going on the record one way or another was politically unwise for them. And that provides a clue to the reason that Democrats did not filibuster or otherwise block the confirmation.

The Democrats in the Senate can count and they knew who was going to be there for the vote. They weren’t rolled. How do you confirm an appointee made by the unpopular president of the opposing political party at the nadir of his influence while still making political hay? The guy is qualified for the job. Answer: you complain loudly and emotionally about the horrors of the administration, let most of the Democrats in the Senate, er, vote their hearts, i.e. along party lines and allow a handful of senators in safe seats and for whom the safety of their seats will be strengthened vote to confirm while the presidential aspirants aren’t forced to show their hands one way or another. And that’s what happened.

Will we be hearing cries of “DINO!” made against Dianne Feinstein or Chuck Schumer? We’ll hear some mild complaints of the “let it be on their heads!” variety but otherwise I doubt it. What we will hear is plenty of pleas to reduce the likelihood of senators voting based on political calculus by electing more senators who’ll vote on the basis of political calculus.


In the body of the post I meant to mention the value of strategic ambiguity on the subject of torture and that the Democrats in the Senate have maintained it but somehow it got away from me. Steven Taylor makes a related point:

Indeed, I have been meaning to write something lengthy (for a blog post, anyway), but here’s the condensed version: if there are a substantial number of key Democrats (you know, the current majority party) who believe that there is a lack of legal clarity over the classification of waterboarding, why not at least try to remedy the situation via legislation–surely a clearer law would help, if there really is a substantial question here. After all, they are part of the legislative branch (they makes laws, for those of you scoring at home). I fully understand that there are those who are concerned that even with a law that it might be ignored by this administration (the President has asserted the right to ignore laws before), but surely if there is a lack of clarity over the content of the law, it isn’t the Attorney General’s job to fix it, it is the legislature’s.

8 comments… add one
  • There’s another reason, I think, for Democratic passivity. There’s a sense that Bush is done, over, and that engaging him in mortal combat — especially when we lack the votes to do anything decisive — merely elevates his low status. There’s not much to be gained from beating up on him. We’re standing around tapping our toes and checking our watches, impatient for the man to shuffle off the stage so we can get on with business. Bush is Dead President Walking.

  • Certainly a credible explanation, Michael. Unlike most of those I’m reading this morning. I hinted at that in my observation about the presidential aspirants: the downside of opposing the nomination is believed to be greater than the upside.

    And I agree with your assessment of Bush’s status at this point. Did you read the Der Spiegel article? It’s assessment of “Bush Rising” was so far from what I’m seeing that I couldn’t figure out if it was a spoof.

  • PD Shaw Link

    Schumer recommended Mukasey in the first place. I assume many of his considerations were unchanged in all of this, Mukasey was the best nominee that Bush could be expected to appoint.

    The real hypocrisy though was the insistence that vague definitions of the word “torture” must have a certain meaning in the confirmation process, while a bill to make that meaning express sits uncalled in the Senate. I can only assume that Democrats simply want to condemn without consequences.

  • I can only assume that Democrats simply want to condemn without consequences.

    Yes, that’s very nearly exactly my point, PD. Indeed, I think it’s a near-perfect outcome for them rather than the defeat which the Left Blogosphere is painting it as.

  • PD Shaw Link

    Mukasey, torture, Iraq . . . they’re all metaphors for strategic ambiguous inaction.

    I agree with the update to your post too. But I think the first comment to Steven Taylor’s post is telling. The roots don’t want the law clarified because it would provide a defense to Bush to say that waterboarding was performed before it was clearly banned. It is more important to set up the war crimes prosecution of Bush and company than take positive steps on torture.

  • Chris Link

    I believe the Democratic congress is an absoluye mess!! What have they actually done so far? Wait a minute, they actually did try & accomplish something, I for got about Congressinal Democrats who tried to take money away from our brave men & woman serving in the finest military service in the world. Thankfully the money needed passed.

    We have NO hope if Mrs. Bill Clinton becomes our next president, she reminds me alot of John “I change me mind again” Kerry. The left wingers will say & do whatever they need to grab the Presidency.

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