UPDATE: Senators Schumer and Feinstein declared their support for AG nominee Mukasey, making his confirmation "virtually assured," report Richard Cowan and Thomas Ferraro of Reuters.

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Sen. Charles Schumer, who had recommended AG nominee Michael Mukasey, finds himself in a tough spot as fellow Democrats turn against the nomination over waterboarding. The Washington Post has an article by Dan Eggen and Paul Kane today. Memo to Senators: Have you forgotten you are the legislative branch? Just pass a law. Instead of grilling Judge Mukasey about whether he thinks waterboarding is legal, specify in a statute whether it is or not.

In the constitutional system of checks and balances, the separation of powers is not total. The President exercises legislative power in the veto. The Senate exercises executive power in its advice and consent function. There are a few other examples. These checks on other branches' powers are important, but they should be used sparingly. The President should sign almost every bill Congress sends him, and historically he has. Similarly, the Senate should confirm the vast majority of nominees, and historically it has. Using the advice and consent function to grill nominees regarding their interpretation of what the statutes presently allow is a misuse of that function. Instead of asking whether the nominee thinks that general law X allows specific practice Y, Congress can and should pass a statute specifically governing Y. If the members concerned about Y can't pass the statute because they can't convince a majority of their colleagues of their position, then the nominee's views are not so far outside the mainstream as to justify not confirming him.