The Senate Judiciary Committee is scheduled to vote on the nomination of Mike Mukasey to be attorney general at 10am tomorrow morning. The committee has 10 Democrats and 9 Republicans. Two of the Democrats (Schumer and Feinstein) have already indicated that they will vote to confirm, which means the best we can hope for is an 11-8 recommendation to the full Senate. As with most Senate votes, the nomination must accomplish cloture (where 60 senators agree to shut off debate). That should not be much of a hurdle. I'm hearing estimates that Mukasey will get around 70 votes.

This is dispiriting to say the least. Most media narratives have focused on Mukasey's position on waterboarding, and the veteran intelligence community is correct to appeal directly to the Judiciary Committee to reconsider. But, the far greater reason to oppose Mukasey is his position on enforcing Congressional subpoenas. Simply put, he has promised not to enforce them. Does that have any immediate consequence? Yes. Yes, it does.

House Judiciary Chairman John Conyers (D-MI) filed a report today holding that two White House officials [Josh Bolten and Harriet Miers] are in contempt of Congress for their continued refusal to honor subpoenas in connection with the controversial firing of US attorneys last year...

But White House Press Secretary Dana Perino told reporters that an effort to bring a contempt citation to a vote was "futile."

"I'm just amazed that the Democrats actually think they've accomplished so much on behalf of the American people that they can now waste time again on another diversion," she said. "I don't know if they'll actually have a vote on the House floor or not. If they do, I guess we'll just take it from there. But it's been very clear that this is a futile attempt on their part, because they know that it won't go anywhere."

Now...the Raw Story article (cited above) indicates that the Democrats have spent the last 10 days rounding up the votes they need to hold Bolten and Miers in contempt. You might be thinking that, given the advantage the Dems have in the House, it wouldn't be a problem to get the votes. But, the DOJ's promise not to enforce the subpoenas through a contempt of Congress prosecution means that Congress is left with only two remaining options: they either sue Bolten and Miers in court or they take the highly controversial step of invoking inherent contempt.

Under the inherent contempt power, the individual is brought before the House or Senate by the Sergeant-at-Arms, tried at the bar of the body, and can be imprisoned. The purpose of the imprisonment or other sanction may be either punitive or coercive. Thus, the witness can be imprisoned for a specified period of time as punishment, or for an indefinite period (but not, at least in the case of the House, beyond the adjournment of a session of the Congress) until he agrees to comply. The inherent contempt power has been recognized by the Supreme Court as inextricably related to Congress’s constitutionally-based power to investigate.

Sending the Sergeant-at-Arms out to arrest the president of the United States' chief of staff is a pretty alarming prospect and explains this:

House Democratic leaders have spent the past 10 days trying round up enough votes to secure a majority on the House floor for a contempt citation, aware that some Democrats from moderate to conservative districts may be wary of such a high-profile vote against President Bush.

It's clear that the Democrats are gearing up for some kind of confrontation. After all, Artur Davis is hardly a radical. He's a proud leader within the Democratic Leadership Council (DLC).

Rep. Artur Davis (D-Ala.), a member of the House Judiciary Committee, said that he was arguing for the contempt vote because it will cause a constitutional showdown and perhaps settle Congress's conflict with the White House over claims of executive privilege, the legal device used by the administration to decline demands for information and witnesses.

"Congress has a stake and an interest in challenging that kind of unilateral action," Davis said.

It's unclear how far Congress is prepared to go to prevail in a constitutional showdown, but they have no incentive to start a fight if they are not in it to win it. With the DOJ already out of the picture (particularly once Mukasey is confirmed), inherent contempt becomes a real possibility.

I expect Pelosi will take Kucinich's impeachment resolution for Dick Cheney and assign it to the House Judiciary Committee. There it will sit on John Conyers' docket, waiting for an appropriate moment for introduction.

It's unclear whether the Democrats can avoid a real constitutional battle. What is increasingly clear is that they will continue to be treated with contempt, literally, until they do something about it. And confirming Mukasey is about the furthest thing from 'doing something about it' as can be imagined.

Any Democrat that votes to confirm Mukasey, so long as he refuses to enforce congressional subpoenas, deserves our contempt. And their betrayal will never be forgotten.