That forty United States Senators voted against confirmation of Attorney General Michael R. Mukasey speaks loudly of the extent to which a huge minority of Senators comprises way-out liberals and of other Senators who feel it necessary upon highly publicized issues to cater to way-out liberals.

Nobody objectively evaluating merits could have opposed the Mukasey nomination. That is probably the predominant reason why Senator Diane S. Feinstein, a liberal California Democrat known for her “smarts” and her objectivity as well as her liberal approach, voted to confirm. Without the support of New York’s Senator Charles Evans (Chuck) Schumer the nomination almost assuredly would have tanked.

Think of the Senators who voted negatively. An astonishing count of 15 of the 40, all Democrats, hail from “Red” States - that is, States which in 2000 and 2004 voted Republican. Several of them, especially Senator Robert Carlyle Byrd, West Virginia’s (90 years old next week) Dean and President pro tempore of the Senate, occasionally vote on the merits. The generally stated reason to justify a negative vote is that Judge, now Attorney General, Mukasey reacted indecisively to the question of whether “waterboarding” constitutes torture, as probably it does. Bearing in mind the political and PR circus which pervades so many Congressional hearings, perhaps his answer could have been less dubitable but, after all, one should not expect a cautious, competent and objective lawyer, prosecutor and long-time Federal judge to jump at an opportunity to pontificate. More likely, most of the 40 negative votes simply represent an effort to cater to the far left and/or embarrass the George W. Bush Administration - as though there were need for more pertinent embarrassment after the Alberto R. Gonzales role.

The Mukasey Senatorial grandstanding may be an isolated performance. However, it inevitably portends continued serious trouble vis-à-vis confirmation of Federal judicial nominees. The status quo already is dangerously troublesome.

Americans should be grateful that Mukasey, a distinguished and erudite Federal judge, with private-practice and prosecutorial experience, was willing to accept nomination - and to forego a high six-digit income in doing so.

Let’s look at the judicial situation. There presently are 14 vacancies in the United States Courts of Appeals, 33 in the United States District (or trial) Courts. There are 16 “Judicial Emergencies” in the Federal Judiciary, as that term objectively is applied by the Administrative Office of the United States Courts. The Senate of the 110^th Congress has confirmed only 34 nominations, only five of which are appellate. By comparison, the 109^th Congress confirmed 54, including the Chief Justice of the United States, an Associate Justice and 16 Court of Appeals judges. The 107^th and 108^th Congress collectively confirmed 204 Federal judges. Not surprising, at the moment the overall vacancy in the Federal Judiciary is 47 of 871, or 5.4%; in the appellate courts 14 of 179, or 7.8%; in the trial courts 33 of 674, or 4.9%.

The behind-the-scenes word naturally coincides with the obvious. A large minority of Senators, including the Harry R. Reid (D-NV) leadership, wants to hold open as many Federal judgeships as possible until January 20, 2009, in the expectation that the President to their liking and a Democratic Senate in the 111^th Congress then will nominate and confirm a hoard of liberal activists to fill the vast and needy vacancies. Some of those Democratic Senators who are more objective and more interested in the integrity and functioning of the Federal Judiciary are snared in the politics of the process.

Barring the unforeseen one should not expect much improvement from the remaining weeks of the 1^st Session and the 2008 2^nd Session of the 110^th Congress. Were there to be improvement worth noting the result would be a major tribute to the new Attorney General, who inherits a miasmal Department of Justice and deals with a White House which sometimes ineptly handles malicious (and some other) Senators.