Much was said in the Senate during the debate over the nomination of Alberto Gonzales. But it fell to the two senators with the most powerful records of upholding the Constitution to sum up the arguments against making the disgraced White House counsel the 81st Attorney General of the United States.

One decried Gonzales's shameful record:

"I simply cannot support the nomination of someone who, despite his assertions to the contrary, obviously contributed in large measure to the atrocious policy failures and the contrived and abominable legal decisions that have flowed from this White House," said the dean of the Senate, Robert Byrd of West Virginia.

The other senator decried Gonzales's refusal to renounce that record or to suggest that he would set a higher standard as the federal government's chief law enforcement officer.

"Judge Gonzales too often has seen the law as an obstacle to be dodged or cleared away in furtherance of the president's policies," said Wisconsin Senator Russ Feingold, who recalled that during the nominee's appearance before the Senate Judiciary Committee, "He simply refused to say without equivocation that the president is not above the law. The Judiciary Committee and the American people deserve to hear whether the next attorney general agrees that the president has the power to disobey laws as fundamental to our nation's character as the prohibition on torture."

In an honest debate, those two arguments would have prevailed.

But the Senate is no longer a forum for honest debate. So it was always certain that the Republican majority would muster the votes to confirm another of President Bush's Cabinet picks. That they did on Thursday.

But what was remarkable was that six members of what is supposed to be an opposition party joined with the Republicans to rubber stamp a nominee whose unapologetic disregard for the rule of law should have disqualified him from service as a town constable.

The final vote in the Senate was 60 to 36 in favor of confirming Gonzales. By most measures, that is a significant show of opposition. In fact, it is the second largest vote against a nominee for attorney general since 1925. Only outgoing Attorney General John Ashcroft drew more "no" votes.

Make no mistake, the level of opposition to Gonzales was inspired by the nominee's own appearances before the Judiciary Committee. Had Gonzales acknowledged the legitimate concerns about his role in developing and circulating administration memos that condoned the use of some types of torture against suspected terrorists in Guantanamo Bay, Cuba, Iraq and Afghanistan, he would not have faced the level of opposition that he did. But Gonzales was evasive and equivocal in answering questions about whether he would choose to follow the law of the land or the Bush administration's political agenda.

"When Mr. Gonzales was nominated several weeks ago, I didn't know a single member of this body, Republican or Democrat, who had expressed any intention to vote against this nominee," said Senator Christopher Dodd, D-Connecticut. But, after reviewing the Gonzales's testimony, Dodd was forced to ask: "What does it say about our nation's commitment to the rule of law that this nominee will not say that torture is against the law?"

The only answer was that every member of the chamber faced a simple test Thursday: A senator could vote for Gonzales or for the rule of law. But a senator could not do both.

Accordingly, Feingold and Dodd, both of whom supported Ashcroft on the principle that a president has a right to name his Cabinet except in extraordinary circumstances, voted against confirming Gonzales.

But six Democrats did not. Senators Mary Landrieu of Louisiana, Joe Lieberman of Connecticut, Bill Nelson of Florida, Ben Nelson of Nebraska, Mark Pryor of Arkansas and Ken Salazar of Colorado chose ignore concerns about nominee's record and his disregard for the rule of law.

Those votes are significant, and not merely because of what they say about these individual senators. Had five of these senators indicated their opposition to Gonzales, Democrats could have mounted a filibuster, blocking the progress of the nomination at least until Gonzales addressed the critical question of whether he would follow the law or the marching orders of the White House.

Early in the week, Senator Edward Kennedy, D-Massachusetts, discussed the prospect of mounting a filibuster against the nomination. But the idea had to be dropped because, while there was widespread opposition to confirming Gonzales, Kennedy and his allies could muster the 41 votes needed to maintain the filibuster in the face of united Republican support for Gonzales.

The Republicans were, indeed, united.

The Democrats were not. As a result of the positions taken by Democrats Mary Landrieu, Joe Lieberman, Bill Nelson, Ben Nelson, Mark Pryor and Ken Salazar, Alberto Gonzales has been sworn in as Attorney General without ever having to clarify the most fundamental questions about his commitment to the rule of law.

© 2005 The Nation

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