In the puzzling wake of Judge Malarkey's secret late-night Senate confirmation, inquiring minds are asking, what became of "the 60-vote requirement"?

Judge Malarkey and, uh, some other guy (it doesn't matter
who, because our Mike is gonna be such an independent AG)

As we have been told so often, it's now standard operating procedure in the Senate, at least if you're the Democrats: Ya wanna do sumpin, ya gotta has 60 votes, on accounta they'll just wheel in Philly Buster, the knuckle-draggin' Senate terminator.

However, they didn't have to roust Philly from his sleep last night for the unexpected, unscheduled confirmation of Judge "Big Mike" Malarkey as U.S. attorney general. As a matter of fact, the last I heard, nobody seems to know even now how the confirmation vote came to happen last night, seemingly sneaked onto the Senate docket. One hears dark whisperings of a "deal"--presumably yet another in the series of Amazing Deals (do I hear "TV reality show" up ahead?) that Senate Majority Leader Harry Reid has reportedly engineered with his GOP opposite numbers, giving away pretty much anything that's asked for in exchange for . . . um . . . er . . . well, let's put it this way: If the Dems came away with as much as a handful of beans, they did better than I'm imagining. (I'm sure they were told the beans were magic.)

Meanwhile, many people with lingering reservations about the much-respected Judge Malarkey--even in spite of his sincere vows to be independent in saying and doing everything the White House instructs him to--point to the 53-40 vote, with all those missing Democratic presidential candidates supposedly committed to voting "no," and wonder how this fits with the new reality of the need for 60 votes to pass anything in the Senate. Notably Glenn Greenwald over at Salon.com, in pondering "What happened to the Senate's '60-vote requirement'?," notes:

Thus, at least 44 Senators claimed to oppose Mukasey's confirmation -- more than enough to prevent it via filibuster. So why didn't they filibuster, the way Senate Republicans have on virtually every measure this year which they wanted to defeat?

Numerous Senate Democrats delivered dramatic speeches from the floor as to why Mukasey's confirmation would be so devastating to the country. The Washington Post said the "vote came after more than four hours of impassioned floor debate." . . .

So why would 44 Democratic Senators make a flamboyant showing of opposing confirmation without actually doing what they could to prevent it? Is it that a filibuster was not possible because a large number of these Democratic Senators were willing to symbolically oppose confirmation so they could say they did -- by casting meaningless votes in opposition knowing that confirmation was guaranteed -- but were unwilling to demonstrate the sincerity of their claimed beliefs by acting on them?

Along the way Glenn digresses most welcomely into an astonished aside on how torture has become just another issue that people can take sides on:

[The most amazing quote was from chief Mukasey supporter Chuck Schumer, who, before voting for him, said that Mukasey is "wrong on torture -- dead wrong." Marvel at that phrase: "wrong on torture." Six years ago, there wasn't even any such thing as being "wrong on torture," because "torture" wasn't something we debated. It would have been incoherent to have heard: "Well, he's dead wrong on torture, but . . . "

Now, "torture" is not only something we openly debate, but it's something we do. And the fact that someone is on the wrong side of the "torture debate" doesn't prevent them from becoming the Attorney General of the United States. It's just one issue, like any other issue -- the capital gains tax, employer mandates for health care, the water bill -- and just because someone is "dead wrong" on one little issue (torture) hardly disqualifies them from High Beltway Office.]

Eventually Glenn comes to rest, as you knew he had to, on the notion that there really isn't a 60-vote requirement, except when there is:

it isn't true that there is a "60-vote requirement," because only Republicans are willing to impose it. Democrats won't, even on what they claim are the gravest of matters, such as confirming someone as Attorney General who is "dead wrong on torture" and who won't even "tell the president that he cannot ignore the laws passed by Congress."

The so-called "60-vote requirement" applies only when it is time to do something to limit the Bush administration. It is merely the excuse Senate Democrats use to explain away their chronic failure/unwillingness to limit the President, and it is what the media uses to depict the GOP filibuster as something normal and benign. There obviously is no "60-vote requirement" when it comes to having the Senate comply with the President's demands, as the 53-vote confirmation of Michael Mukasey amply demonstrates. But as Mukasey is sworn in as the highest law enforcement officer in America, the Democrats want you to know that they most certainly did stand firm and "registered their displeasure."

I really can't think of anything more to say. But if you check out Glenn's full post on Salon.com, you'll find that plenty of other people could. The last I looked, there were 263 comments.


UPDATE: ABOUT THE REID DEAL ON JUDGE MALARKEY

On TPM, Greg Sargent is now reporting:

"According to sources inside and outside the Democratic leadership, Harry Reid allowed a vote on Mukasey because in exchange the Republican leadership agreed to allow a vote on the big Defense Appropriations Bill, which contains $459 billion in military spending but doesn't fund the wars in Iraq and Afghanistan.

"Reid had wanted to get this bill passed before the end of this week, and in fact, the defense bill did come up for a vote late last night and was passed after the Mukasey vote. "

Says Sargent, "Dem leaders wanted this defense approps bill passed . . . to be able to argue that they had sent a bill to the President funding the military, if not the war itself. The idea was that doing this would allow them to protect themselves in the days ahead when the battle over Iraq funding heats up and Republicans inevitably charge that Dems are refusing to fund the troops."

On the subject of a Democratic fillibuster to the nomination, according to Sargent, "A leadership source claimed that it was because Dem leaders were convinced that Repubs would be able to break off enough Dems to reach the 60 vote threshold and defeat the filibuster. They would have gotten 60. Some on the Democratic side honestly fundamentally don't believe in filibustering cabinet secretaries. We are on the cusp of a new administration, and we think it will be a Democratic one. Filibustering here would have set a bad precedent."

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