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Rice, Gonzales votes signal Democrats’ strategy

Listening to Democrats? Sen. Evan Bayh, D-Ind., voted "no" on Condoleezza Rice's nomination Wednesday. Manish Swarup / AP file
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Despite allegations that Alberto Gonzales was complicit in the torture and abuse of prisoners in Iraq and at Naval Base Guantanamo Bay, Senate Democrats do not have the votes to defeat his nomination as attorney general, just as they didn’t have the votes to defeat Condoleezza Rice’s nomination to be secretary of state.

Rice cruised to an 85-13 confirmation Wednesday, and it appears nearly certain that Gonzales, too, will win approval, with at least a few Senate Democrats backing him, when the Senate votes, probably next Wednesday.

The big political news in Wednesday’s Rice vote was that strongly pro-Iraq war Sen. Evan Bayh of Indiana voted against her confirmation.

“She has been a principal architect of policy errors that have tragically undermined our prospects for success in this endeavor,” Bayh told the Senate. “Those in charge must be held accountable for mistakes; we must learn from them, correct them, so that we may succeed in Iraq.”

Sen. John McCain, R-Ariz., interpreted the Democratic opposition to Rice as animus from their losing 2004 presidential campaign.

“I can only conclude that we are doing this for no other reason than because of lingering bitterness over the outcome of the election,” McCain said.

Looking to 2008?
But just as likely, it was the next election in 2008, not last November’s, that set the background for the vote on Rice and the one next week on Gonzales.

In electoral terms, Bayh’s vote seemed confirmation that he is running hard for the Democratic presidential nomination in 2008.

“If Bayh is calculating that a vote against Rice would sit well with Iowa Democrats, he would be correct,” said Iowa Democratic activist David Loebsack, who teaches politics at Cornell College in Mount Vernon, Iowa.

“Opposition to the war has grown here as well across the country, especially among Democrats.”

Loebsack added, “There is a palpable concern among activists that Bush will drag America into more and deeper conflicts in his second term. It clearly would behoove any potential ’08 Democratic candidate to be very aware of these concerns.”

Last May, Bayh, who voted for the 2002 Iraq war resolution, said, "our cause is morally superior to our adversaries’," a statement many on the left of his party would find hard to accept.

Intriguingly, the woman who may be Bayh’s chief rival for the 2008 nomination, New York Sen. Hillary Clinton, voted to confirm Rice.

Senate Democrats find themselves divided over Rice and Gonzales: 32 Democrats voted for Rice, while only 12 voted against her.

Sen. Ben Nelson, D-Neb., one of the dwindling number of “red state” Democratic senators and one who is up for re-election in less than two years, told Wednesday he will vote to confirm Gonzales.

Nelson backs Gonzales
“I met with him for a considerable length of time to talk about some of the issues that have been raised and satisfied myself that he could be a capable attorney general,” Nelson said off the Senate floor after casting his vote for Rice.

Of the torture complicity charges against Gonzales, Nelson said, “I haven’t gathered that from my research, so I haven’t been persuaded.”

In Wednesday’s Judiciary Committee vote, Gonzales won approval on a party-line vote of 10-8.

A filibuster to kill Gonzales’s nomination is not in the cards, one Senate Democratic staffer said Wednesday.

And Sen. Dianne Feinstein, D-Calif., who opposed Gonzales in the Judiciary Committee, told reporters, “I do not think there should be a filibuster of a cabinet nominee.”

“I don’t think there’s any intention to filibuster. Whether that evolves I don’t know, but I haven’t heard anything like that so far,” said Sen. Charles Schumer, D-N.Y., who also voted "no" on Gonzales in the Judiciary Committee.

Four years ago, in the vote to confirm John Ashcroft as attorney general, 42 Democrats voted against him. Will Democrats muster at least that many next week to vote against Gonzales?

The Democrats’ allegations against Ashcroft in January 2001 were that he was an ideologue, opposed to the Roe vs. Wade abortion decision, and unscrupulous in leading the effort to defeat President Clinton’s judicial nominee Ronnie White.

Comparison to Ashcroft
The charges against Gonzales are far more serious: that he solicited and approved legal memoranda that gave permission to American soldiers and CIA agents to torture and abuse al-Qaida suspects and Iraqi prisoners.

Sen. Joe Biden, D-Del., said Gonzales’ “judgment is defective” and he “utterly failed” to “own up” to what Biden saw as his complicity in a legal memorandum written by former Justice Department official Jay Bybee, now a federal judge in Nevada.

That memo said that a U.S. official or soldier accused of violating the U.S. torture statute after interrogating a suspect could invoke national defense to avoid prosecution if, for example, “an impending terrorist attack threatens the lives of hundreds, if not thousands, of American citizens.”

Biden also assailed Gonzales’ decision that the 1947 Geneva Convention should not apply to those al-Qaida and Taliban members captured in Afghanistan.

Invoking Rice’s nomination (for which he voted), Biden said, “she did a lot of stupid things,” but Gonzales did something worse, in Biden’s view: He gave Bush poor legal advice and showed that he would lack the necessary independence to serve as attorney general.

Still, Biden said, Gonzales would be “a significant improvement” over Ashcroft as attorney general.

Schumer also used the Ashcroft yardstick, saying that while Gonzales might be “much less polarizing than Ashcroft has been,” that wasn’t enough to win his support.

(Schumer and Biden both voted ‘no’ on Ashcroft’s nomination in 2001.)

Biographical trump card
In rebuttal, Republicans played their biographical trump card: Gonzales, the poor son of migrant workers from Mexico, who grew up in a house without running water, working his way up to graduate from Harvard Law School and to become Bush’s chief legal adviser.

“Every Hispanic in America is watching how this man is being treated,” said Sen. Orrin Hatch, R-Utah, at Wednesday’s Judiciary committee hearing, in what sounded like a warning to Democrats.

Also in Gonzales’ defense, Sen. Jeff Sessions, R-Ala., pointed out that the language that Democrats found so objectionable in the Bybee memo was that of a torture statute written by Congress itself back in 1994.

A “no” vote on a Cabinet nominee who is sure to be confirmed may seem futile but it isn’t.

For presidential contenders and for ordinary senators, it is a useful form of signaling to grass-roots Democrats and Democratic-affiliated advocacy groups that Democratic senators will fight Bush and his policies.

“It showed that when we feel something is wrong, we’ll stand up,” Schumer told reporters right after the Judiciary Committee vote. “I don’t think people should feel we are cowed. We’re not cowed.”

The resistance to Gonzales also keeps the Democrats muscles toned for the battle to erupt in the next several weeks over Bush’s judicial nominees.

In the case of Gonzales, Democrats cannot delay his confirmation vote until the end of Bush’s term in 2009.

But, as Republican senators did to some of President Clinton’s judicial nominees, Democrats could use filibusters and other procedural devices to delay votes on Bush judicial nominees until the end of his term, leaving judicial vacancies open for a Democratic president, if Bayh, Hillary Clinton or some other Democrat is elected in 2008.

Soon to come: a battle over Bush’s nomination of William Haynes, the general counsel to the Defense Department, who like Gonzales has been accused of complicity in abuse of prisoners. Foes of Haynes, such as People for the American Way, say he appointed members of a Pentagon group that proposed ways of evading treaties banning torture. Haynes, unlike Gonzales, is not a Latino, which makes him an easier target for Democrats.

“Haynes — he’s on deck — we’re working on him,” Sen. Edward Kennedy, D-Mass. told reporters Wednesday. Kennedy, himself a Democratic presidential contender in 1980, voted "no" on both Rice and Gonzales.