Speaking about the possibility of AG Holder weighing appointing a special prosecutor to investigate Bush era torture policy, Matt Yglesias wonders if the possibility of political derailment is really something Democrats should worry about.

Holder’s quite right to say that he’s not supposed to think of the impact on the domestic legislative agenda. But I think it’s something we here in the peanut gallery both can and should think about. Back during the transition, I had a lot of concern about this derailment possibility. But from the vantage point of July, it doesn’t look to me as if there are any substantial number of Republicans interested in voting “yes” on a universal health care bill or on a clean energy bill. So how derailed can the agenda become?

Granted, the data is a bit outdated (May 2009), but polling suggests 57 percent of Americans don’t favor Congressional investigation of torture policies and slightly less (50 percent) actually approve of waterboarding, even though 60 percent believe it to be torture. I think the risk then isn’t in losing a Republican vote on health care or energy legislation, but giving Republicans a political bludgeon that will help shift the momentum of all political debates by handing the GOP an issue with which they enjoy a modicum of support. You can envision a scenario wherein growing support for the GOP allows centrists like Ben Nelson, Evan Bayh, or Mary Landrieu the shred of political cover they might need to vote no on cloture.

Unfortunately, I think the prosecution of Bush era war criminals is the sort of thing that can’t be driven without wide margins of public support. After all, such a high profile investigation isn’t merely about bowing to the rule of law. It’s also a very public disavowal, and if the support for that type of mea culpa doesn’t exist, it’s going to be highly unpopular.


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