These are tough times for the loyal opposition. After long years of mismanagement, the Republicans have been banished to the sidelines - they are currently outnumbered on Capitol Hill by a margin of 315 to 219 (excluding Al Franken) - and so naturally they're stuck with trying to figure out how to behave. At a time when the president enjoys a level support that is unprecedented for a newcomer, when should the GOP cooperate with the Democratic majority (and thus please the citizen majority), and when should it resist? How should the GOP choose its battles?
This will be an ongoing dilemma; in fact, it's clear that these wilderness wanderers have already lost their compass. Consider what happened yesterday, for instance. The Republicans know that they have to stand up for something, so what did a few senators choose to do?
They stood up for torture.
More specifically, they stood up for the notion that any American conducting torture should get off scot free.
Naturally, those are popular stances within the conservative Republican base (the place where the surviving Republican politicians are most comfortable), but hardly likely to win the hearts and minds of the new American majority. According to a new Washington Post-ABC News poll, 58 percent oppose the use of torture under all circumstances; only 40 percent say otherwise. The key measure is that independents, the folks in the middle, oppose torture under all circumstances by a margin of 56 to 43 percent.
Nevertheless, key Senate Republicans decided yesterday to take a stand. They did so by delaying the confirmation of Eric Holder as U.S. attorney general. During recent hearings, Holder had the temerity to say that "waterboarding is torture." That view basically conforms to existing law; the Bush Justice Department at one point issued an opinion that deemed waterboarding to be legal, but that was later rescinded. In any event, Senate Republicans were disturbed by Holder's response. They voiced concern that Holder might therefore seek in the future to prosecute some interrogators who had engaged in waterboarding. When asked about that, Holder declined to say what he might or might not do.
GOP Senator John Cornyn, the Texan who engineered the postponement, isn't pleased that Holder refused to state his intentions. (Imagine that: Holder wouldn't categorically promise to overlook the actions of those who might have broken the law.) The real problem with the GOP complaint, of course, is that it betrays a cluelessness about how prosecutors actually do their jobs.
For the sake of enlightenment, here was Republican Senator Lindsey Graham, a former military prosecutor himself, as he defended Holder yesterday: "Making a commitment that you'll never prosecute somebody is probably not the right way to proceed...I don't expect (Holder) to rule it in or out." Why not? Because no self-respecting Justice Department leader is going to unilaterally rule out prosecutions of hypothetical cases based on hypothetical evidence he hasn't weighed.
And why would Holder want to do that, when there is ample moral grounding for prosecutions? The U.N. Convention Against Torture - formally endorsed in 1988 by the Reagan administration - clearly states: "No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture." Furthermore, "an order from a superior officer or a public authority may not be invoked as a justification of torture..."
Indeed, at least two Republican senators, Orrin Hatch and Mel Martinez, have already indicated they plan to vote for Holder. And John McCain, while not specifically referring to the Holder nomination, voiced this warning to his party colleagues yesterday: "We had an election, and we also had a remarkable and historic time (on Inauguration Day), and this nation has come together as it has not for some time. I pay attention to the president's approval ratings. Very high. But more importantly, I think the message that the American people are sending us now is they want us to work together and get to work."
Clearly, the GOP hasn't yet figured out how to proceed. John Boehner, the party's House leader, said earlier this month that Republicans can't afford to be seen as "the party of no." With that yardstick in mind, they might want to go in search of affirmative solutions to the nation's woes - rather than obstruct an attorney general nominee who assails the illegality of waterboarding. The latter stance seems so four years ago.