11/09/2007 11:46 am ET | Updated May 25, 2011

Schumer, You Are Nothing To Me Now

I remember once in upstate New York happily pulling the handle on an old fashioned voting machine for Representative Chuck Schumer when he challenged Senator Alphonse D'Amato. I remember being elated when Schumer defeated the incumbent D'Amato whose entire campaign relied on smears and attack ads. Earlier this year I remember taping C-SPAN and intensely following every question that left Senator Schumer's lips when he grilled Attorney General Alberto Gonzales in front of the Judiciary Committee. I was convinced that Schumer cared about the abuses of power going on in the Bush Justice Department as he forced the hapless Gonzales to squirm at the hearing table about his role in turning the DOJ into a large College Republicans chapter.

I always viewed Chuck Schumer as a tough lawyer with a shrewd legal mind who understood the importance of keeping the attorney general's office independent from the whims of the White House and the Republican Party. Schumer seemed to understand the danger in the products Bush's law factory cranked out: torture memos, signing statements, FISA-violations, NSA surveillance, "inherent powers," and so on. Gonzales was CEO of a cottage industry that pumped out interpretations of the law that were as crazy as they were disastrous. Schumer wanted the madness to end and I supported his efforts wholeheartedly.

But all that is gone now. Senator Schumer's tortured logic justifying his vote in favor of confirming Michael Mukasey as the new Attorney General showed that everything I thought he stood for was nothing but hot air and vapor. All the pointed questions, cross examinations, and tough follow-ups Schumer leveled at Gonzales dissipated the moment Mukasey sat in the witness chair. Either Schumer's shrewd legal mind was asleep at the switch or he deliberately deployed his intellectual gifts to the practice of chicanery. When the American people badly needed him to stand up for the Constitution and the rule of law Schumer dropped the ball.

First, it makes no sense to require the Congress to pass another law making "waterboarding" illegal because it already is illegal. Just because Mukasey blew smoke around the definition of controlled drowning as an "interrogation technique" (which in practice is very similar to the techniques used by Klaus Barbie, the Gestapo, and just about every other tyrannical regime in history), does not mean this internationally condemned form of torture needs to be debated on the merits of its legality. As Senators Sheldon Whitehouse, Edward Kennedy, Dick Durbin, Russ Feingold, and lawyers from groups as diverse as the JAGs and the ACLU, pointed out: There is no need to "clarify" the law banning waterboarding with new legislation to placate George Bush and Michael Mukasey.

Second, in front of the Judiciary Committee Mukasey eloquently defended his belief that the president has the power to ignore acts of Congress, pick and choose the parts of laws he will obey with signing statements, order his staff to duck Congressional subpoenas, hold captives without due process, and wiretap innocent Americans without a court order. Mukasey's expansive view of executive power vis-a-vis the Congress appeared to differ little (if at all) from that of Gonzales or even Dick Cheney. The core problem today -- the crucial Constitutional crisis -- revolves around the runaway powers of the Imperial Presidency we've seen over the last six years. Mukasey promised to continue to give Bush a free hand and to use the Department of Justice to protect presidential prerogatives. It's ludicrous and hypocritical for Schumer to excoriate Gonzales for this authoritarian view of the executive but then turn around and pat Mukasey on the back for doing the same. Schumer, in effect, told a Bush crony: "Mikey, You're Doin' A Heckuva Job!"

Finally, by handing Bush yet another political victory Schumer (and his co-conspirator California Senator Dianne Feinstein) took the wind out of the Democratic Congress's sails in its Constitutional struggle with one of the most belligerent and bellicose Chief Executives we've ever seen in our history. Schumer reinforced every negative stereotype the Democrats have earned in recent years: they are weak; they will never stand up for principle; they are always willing to cave in to the Republicans; they lack the courage of their convictions, etc. How this endorsement of Bush's ideology helps the Democrats in the next election is beyond me. The Democratic base is becoming increasingly demoralized. A year from now, the general election might surprise the Beltway consultant complex with a staggeringly low voter turn out. Why bother to vote if both parties are duplicitous in shredding the Constitution and violating civil liberties?

By bolting from the leaders of the Judiciary Committee and siding with George W. Bush. Schumer, (and Feinstein, from whom I expected very little), have done enormous harm to the republic and to the Democratic Party.

The Senate would have rejected Mukasey if Schumer and Feinstein acted like Bobby Kennedy Democrats instead of Reagan Republicans.

If following the Senate's rejection of Mukasey the ever-petulant Bush chose not to nominate another A.G., telling the country "take it or leave it," so be it. Scuttling Bush's nominee would have sent a clear signal to the administration that Congress was no longer a rubber stamp and Bush is going to have to accept limits on his "wartime" powers. Instead, Schumer and Feinstein handed Bush yet another stunning political victory. It's going to be a long year.