Via Molly I at Atrios’s place, we see that Senator Schumner is either not terribly bright or thinks that we are not terribly bright. In his defense of the torture supporting Mukasey, Senator Schumer says this:

We are now on the brink of a reversal. There is virtually universal agreement, even from those who oppose Judge Mukasey, that he would do a good job in turning the department around. My colleagues who oppose his confirmation have gone out of their way to praise his character and qualifications. Senator Sheldon Whitehouse, Democrat of Rhode Island, for one, commended Judge Mukasey as “a brilliant lawyer, a distinguished jurist and by all accounts a good man.”

Most important, Judge Mukasey has demonstrated his fidelity to the rule of law, saying that if he believed the president were violating the law he would resign.

They key phrase here is “if he believed” because we know that the President or his underlings have already broken the law and we know that Mukasey finds nothing wrong with that. We know that the US government has used water boarding and we are certain as anyone can be that such tactics were ordered, if not by the White House, then with the White House’s approval. That is the real reason that Mukasey will not simply state the obvious fact: water boarding is torture. If he did, he would have to either be unwilling to serve under a President who allowed such abuse to take place or be publicly committed to arresting and trying the people who committed and ordered that torture, no matter where that investigation would lead. Since he can do neither — an one gets appointed Attorney General if they intend to prosecute the President or his advisers — he must dance around the true nature of the torture his future boss has allowed to take place.

So Mukasey has already once decided that clear, black letter law does not apply to the White House. There is no reason to believe that Mukasey will not simple re-adjust his understanding of “illegal” as the situation warrants. he has done it once already on a very serious, very grave matter. Schumer would be an idiot to believe he wouldn’t do it again, especially if the stakes were not as high. I don’t think Schumer is an idiot. I think he is a political coward.

Schumer says something very telling in his op-ed:

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 and his chief of staff, David Addington. All the work we did to pressure Attorney General Alberto Gonzales to resign would be undone in a moment.

The specter of a fight over executive power, especially on the grounds of national security, is almost certainly what is driving Schumer to this vote. Yes, Bush would probably try to do exactly this, to make permanent an un-accountable choice. But the Senate can fight back against these maneuvers. They can stay in session, preventing a recess appointment. They can use the power of the purse to cut off spending on the salaries of senior Administration officials. They can prevent any of Bush appointments in other areas form moving forward. They can do a lot of things, some drastic some not so drastic. But doing those things means a very public show down over executive power, a showdown that Schumer clearly does not have the stomach for.

But the fight is there whether or not Schumer wants to have it. By refusing to face up to that fact, Schumer has just surrendered. he has plainly given up the power of the Senate to prevent the White House from using torture if he allows an AG who will not stand against such abuse to be confirmed. By running away, Schumer has lost and has lost badly. One more piece of the lunatic unitary executive has just been implicitly affirmed. The only way to stop this nonsense, to prevent the next generations of Cheneys, Bushs and Roves from pushing this destructive agenda is to stop it now.

But Schumer wont even try. He will quietly walk away form the most important fight in a generation, accept Mukasey’s pat on the head and soothing, if already proven worthless, assurances and hope things get better without him having to actually, at any point, behave as if he was a United States Senator.