Schumer, Feinstein ‘surprise’ thwarts efforts on Mukasey

The coordinated statements released late Friday afternoon by two Democratic senators that they would break ranks and support President Bush’s attorney general nominee largely muted opposition from a Democratic base that has become increasingly frustrated with Congress, activist leaders said Monday.

Sens. Charles SchumerCharles (Chuck) Ellis SchumerNational emergency declaration — a legal fight Trump is likely to win House Judiciary Dems seek answers over Trump's national emergency declaration Mandatory E-Verify: The other border wall MORE (D-N.Y.) and Dianne FeinsteinDianne Emiel FeinsteinFeinstein says she thinks Biden will run after meeting with him Trump judicial nominee Neomi Rao seeks to clarify past remarks on date rape Bottom Line MORE (D-Calif.) effectively thwarted plans by the activist left to use the weekend to mobilize ahead of Tuesday’s Judiciary Committee vote and pressure wayward senators to reject the nominee, activists said.

“It was a surprise attack,” said Caroline Fredrickson, director of the Washington legislative office for the American Civil Liberties Union, which wants the Judiciary Committee to defeat the nomination. “There was a limited opportunity to say much about what Schumer and Feinstein had done because the timing was very cleverly calculated to avoid scrutiny.”

With the support of Schumer, Feinstein and the committee’s nine Republicans, Mukasey has garnered enough support to clear the panel and move to the Senate floor.

Before Feinstein’s announcement, sent to the media by e-mail at about 4:28 p.m., the nomination had seemed in doubt, especially after Judiciary Chairman Patrick LeahyPatrick Joseph Leahy‘Contingency’ spending in 3B budget deal comes under fire How the border deal came together Winners and losers in the border security deal MORE (D-Vt.) announced his opposition to Mukasey at a 3 p.m. news conference in Burlington, Vt. Leahy became the fifth Judiciary Committee Democrat to announce his opposition over Mukasey’s refusal to state explicitly that the interrogation technique known as waterboarding constitutes torture.

Hours before Leahy’s press conference, however, Schumer in a telephone call already had laid out his thoughts to the chairman and also relayed a message that Feinstein had planned to support the nominee, according to aides.

But Schumer and Feinstein withheld announcing their decisions until late that afternoon. For Schumer, a decisive meeting came later in the day, around the same time as Leahy’s press conference. Mukasey assured him he would enforce any law Congress passes to explicitly state that certain interrogation techniques — such as waterboarding — are illegal under U.S. torture laws.

“Judge Mukasey is a lawyer’s lawyer. He will not leap to quick judgments,” Schumer said in his statement. “When we want him to do so, such as on torture, we will be disappointed. But when he resists those in the administration who want quick and facile answers . . . it is they who will be disappointed.”

The New Yorker, one of the most outspoken critics of the Bush administration, had been in an awkward position because he recommended Mukasey for the post before Democratic opposition grew. Both Schumer and Feinstein said they believed a Mukasey Justice Department would be markedly better than the tumultuous tenure of the resigned Alberto Gonzales.

Feinstein had made up her mind Thursday that she would support the nomination, but her office was still finalizing a statement when they caught wind of Schumer’s decision on Friday, one of her aides said. They decided to withhold the statement until Schumer was ready to make his announcement after both his afternoon meeting with Mukasey and the Leahy press conference. She followed up with a guest column explaining her views in Saturday’s edition of the Los Angeles Times.

“Judge Mukasey’s answers were quick and to the point, and reflected an independent mind,” Feinstein said in the column. “I truly believe he will be a strong advocate for the American people.”

By issuing coordinated statements late on a Friday afternoon, the senators employed the old Washington trick of breaking news at the end of a news cycle. Simultaneously, they undermined efforts by both the left and the right to pressure them into voting either for or against the nominee.

But they also undermined Leahy’s announcement, which would have dominated the weekend’s news. A Judiciary Committee aide, however, said there was no ill-will towards the senators for doing that.

“As you know, Sen. Leahy and Sen. Reid have not made this a caucus vote,
and as chairman, Sen. Leahy has not twisted any arms,” the aide said, referring to Senate Majority Leader Harry ReidHarry Mason ReidConstitutional conservatives need to oppose the national emergency Klobuchar: 'I don't remember' conversation with Reid over alleged staff mistreatment Dems wary of killing off filibuster MORE (D-Nev.). What he does feel strongly about is knocking down, during this debate, the falsehood that waterboarding is not already torture and illegal.”

 One leader of an activist group opposed to the nomination said the coordinated statements by the senators had a “chilling effect” on efforts to drum up opposition over the weekend.

“They wanted to decrease the intense focus on the two of them, and each reinforces the other by doing this together,” said Carl Tobias, a law professor at the University of Richmond. “It takes some of the heat off of each of them.”

Feinstein is familiar with being the lone Democrat to side with Republicans on the Judiciary Committee. She did so in August by joining all nine Republicans in voting for the nomination of Leslie Southwick for a lifetime seat on a New Orleans-based appeals court – over the strong objections of the other nine committee Democrats because of the nominee’s civil rights record.

Among some activist groups, the feelings are still raw with Feinstein for not joining Democrats to defeat the Southwick nomination in the committee. More broadly, the base has grown increasingly angry at Democrats for capitulating to Republicans on major issues, such as the Iraq war and Bush’s domestic spying program.

One leading Democratic activist expected Schumer to get earfuls during fundraisers for the Democratic Senatorial Campaign Committee, which he chairs. Also, one grassroots group,, has called for a moratorium on donations to the committee, which is trying to expand the Democratic majority in the Senate.

It’s unlikely that calls to cut off donating to the DSCC will pick up steam, activists said.

Even though Mukasey’s nomination is virtually assured, activists are still planning on airing their concerns. The Leadership Conference on Civil Rights is putting together a letter laying out its opposition and the concerns of a slew of other left-leaning groups.