Now that a few key democratic senators have refused to vote against Mukasey, it looks like he will be confirmed to be the attorney general. This is not quite as bad of a result as it could be: acting attorney general Paul Keisler is apparently an absolute hack, and the general consensus is that no matter how much pressure the Democrats applied, Bush wouldn’t nominate anyone more reasonable than Mukasey.
The problem is that Mukasey has pretended ignorance on the waterboarding issue, refusing to classify it as either torture or illegal, though he was willing to call it abhorrent. So confirming him sets and maintains a number of bad precedents: that waterboarding will never be admitted to be torture under the current administration, and that congress is itself partially complicit in that decision, but also that the nominee for the Attorney General is allowed to feign ignorance where ignorance is indefensible. There are numerous accounts of what waterboarding involves (see Cosma Shalizi for the story of an honest member of the Bush administration who chose to be waterboarded and promptly called it torture), so what information is Mukasey waiting on? At the absolute minimum, honesty would demand that he explain what sort of information he lacks that prevents him from saying whether waterboarding is torture.
Perhaps the best compromise is for the spineless wing of the Democratic party to abstain, as Matt Yglesias has suggested. In fact, these votes are usually telegraphed well in advance, so perhaps you could get a mass abstention: a 49-2 vote for Mukasey, with 49 abstentions. If he’s going to be confirmed anyway, everything else is symbolic, but I think this would be a very cute symbol. Sadly, even if proposed, it would have a snowball’s chance in hell: Mukasey will likely get 55-60 votes, with only a few abstentions at this point.
Update: Forget the circumspection above, it turns out that we actually prosecuted Japanese soldiers for torture, based on..(do you see it coming?)..waterboarding American GIs. Not to endorse an unduly progressive view of history or nothing, but how often do we take back a decision that something counts as torture or cruel punishment? Will we renew the practice of drawing and quartering criminals?