There is not much chance that the full Senate will block the nomination of White House counsel Alberto Gonzales to serve as Attorney General. But, as the vote approaches, critics of Gonzales have the potential to garner a stronger vote against his confirmation than they did in one or both of the last two fights over controversial conservative nominees to guide the Department of Justice: Edwin Meese in 1985 and John Ashcroft in 2001.

Thirty-one senators — all of them Democrats — opposed Meese’s confirmation, while forty-two senators — again, all Democrats — opposed Ashcroft.

It would be meaningful if foes of the Gonzales nomination in particular, and of the Bush Administration’s callous approach to civil liberties and international law in general, could muster as many vote against the current nominee as they did against Meese. And, considering the fact that there are fewer Democrats in the Senate now than in 2001, it would be exceptionally significant if they could equal the anti-Ashcroft vote.

Neither prospect is beyond the realm of possibility.

Unlike Meese, who gained a reasonable level of support from a still-substantial caucus of conservative Democrats, and Ashcroft, a former senator who garnered the votes even of some liberal Democrats with whom he had served, Gonzales has very little claim on Democratic support. Additionally, he could lose the votes of one or more Republicans.

Here are the particulars:

* When the Senate Judiciary Committee recommended approval of the Gonzales nomination, it did so along precise partisan lines. Ten Republicans voted for Gonzales, while eight Democrats voted against him. The Democratic unity is significant, as it was lacking in 2001. That year, Wisconsin Senator Russ Feingold, one of the most liberal members of the chamber, broke with his fellow Judiciary Committee Democrats. Along with Connecticut’s Chris Dodd and a handful of other Democrats, Feingold has argued that Presidents have a right to select the Cabinet that they want. But Feingold always promised that he would make an exception if a nominee’s record or actions raised serious concerns about ethics or competence. After grilling Gonzales at length during a Judiciary Committee hearing in early January, Feingold said he was not confident that Gonzales would respect the rule of law. Accordingly, he voted against confirming the nominee. The Feingold break is significant, as he has credibility with Democrats who usually refuse to oppose Cabinet nominations. Additionally, Feingold has a measure of across-the-aisle credibility with moderate Republicans who see the Wisconsinite as one of the few senators who tends to rise above partisanship.

* There is a widespread sense in the Senate that objections to Gonzales are more serious than those raised with regard to Ashcroft. Ashcroft, a member of the Senate until just days before the vote on his nomination for Attorney General, had raised the hackles of grassroots activists who were concerned that he was a rigid ideologue — unyielding in his opposition to abortion rights, unsympathetic to civil liberties, and frequently insensitive to civil rights. While those concerns were legitimate and clearly consequential for millions of activists and a good many senators, the objections to Gonzales are more specific and shocking. Not only did Gonzales solicit and approve legal memoranda that gave permission to US troops and the Central Intelligence Agency to torture Iraqi prisoners and al-Qaida suspects, he also ridiculed the 1947 Geneva Convention as “quaint” and argued that it did not apply to Taliban and al-Qaida operatives captured in Afghanistan. Even worse, as Delaware Democrat Joe Biden noted, Gonzales “utterly failed” to “own up” to his role in developing a legal memorandum that said a U.S. soldier or civilian official who was accused of violating U.S. statutes that make it illegal to torture a suspect could invoke national defense concerns in order to avoid prosecution. Vermont Senator Patrick Leahy, the ranking Democrat on the Judiciary Committee, provided appropriate perspective when he explained, “The attorney general’s duty is to uphold the rule of law, not to circumvent it. The Administration has a large and growing accountability deficit, and as this confirmation process draws to a close, I must protest that the stonewalling continues.”

* Beyond the Judiciary Committee, Senate Democrats appear to be more united in their concern about the Gonzales nomination than they were with regard to Meese and, probably, Ashcroft. At least one Democrat will back Gonzales — Nebraska Senator Ben Nelson, a conservative Democrat who faces a tough reelection race in 2006. But Nelson’s defection could be isolated. The decision of Indiana Democrat Evan Bayh, a centrist with hawkish views regarding national defense issues, to oppose the nomination of Condoleezza Rice for Secretary of State provided evidence that the desire to stand up to the Bush administration runs deep — especially among Democrats who, like Bayh, entertain hopes of seeking the party’s 2004 presidential nomination. If Senate Minority Leader Harry Reid, D-Colorado, and Minority Whip Dick Durbin, D-Illinois, can hold the vast majority of their caucus together in opposition to Gonzales, then there might actually be room for outreach to Republicans who are ill at ease with the administration’s approach to the Iraq war. First on that list is Rhode Island Republican Lincoln Chafee, who opposed the 2002 use-of-force resolution and remains a thoughtful critic of the misadventure. Maine Senators Olympia Snowe and Susan Collins, who have shown a measure of independence in the past and who represent a state where there is strong anti-war sentiment, could be vulnerable to the right level of grassroots pressure — although they will be inclined to stand with Judiciary Committee chair Arlen Specter, a fellow Republican moderate, who is backing Gonzales.

With Democrats refusing to filibuster the nomination, the safe bet is that Gonzales will be confirmed. But it does not have to be easy. And it does not have to be simply an honorable stand by a circle of liberals — as was seen when 12 Democrats and Vermont Independent Jim Jeffords opposed Rice’s nomination for Secretary of State. This can be a serious challenge to the Bush Administration’s wrong-minded war, its abuses of civil liberties, and its callous disregard for the rule of the law. Indeed, if the Bush administration is to be served notice that it will not be allowed to run roughshod over Congress for another four years, then it is essential that the vote against the Gonzales nomination be as strong as the grassroots opposition to this exceptionally poor pick for this exceptionally important position.


John Nichols’s new book, Against the Beast: A Documentary History of American Opposition to Empire (Nation Books) will be published January 30. Howard Zinn says, “At exactly the when we need it most, John Nichols gives us a special gift–a collection of writings, speeches, poems and songs from thoughout American history–that reminds us that our revulsion to war and empire has a long and noble tradition in this country.” Frances Moore Lappe calls Against the Beast, “Brilliant! A perfect book for an empire in denial.”