Michael Mukasey appears before the Senate Judiciary Committee during a hearing on his nomination to become attorney general.
Credit: Diego M. Radzinschi/Legal Times
Aided by Democratic defections, Michael Mukasey moved much closer to confirmation as the nation's 81st attorney general when the Senate Judiciary Committee voted 11-8 Tuesday to send his nomination to the full Senate.
Sens. Charles Schumer, D-N.Y., and Dianne Feinstein, D-Calif., joined the nine Republicans on the committee to endorse Mukasey, a retired New York federal judge whose refusal to equate simulated drowning -- known as waterboarding -- with torture had threatened to undo his appointment.Schumer said Tuesday that Mukasey had reassured him that, if confirmed, he would enforce any new laws Congress passed banning the use of waterboarding, a controversial interrogation technique that the CIA has used in recent years and is outlawed by international treaties.Appealing to the specter of continued disarray at the Department of Justice, Schumer said the alternatives would be worse if senators didn't approve Mukasey's nomination."No one questions that Mukasey needs to remove the stench of politics from the Justice Department," Schumer told colleagues at a packed committee hearing. "I believe we should give him that chance."The dissenting Democrats' key support was not lost on Republicans on the committee."To Senator Schumer, thank you for recommending Judge Mukasey to President Bush," said Sen. Lindsay Graham, R-S.C.Calling Mukasey an "independent breath of fresh air," Feinstein said she worried President George W. Bush, who has said he will not put up another nominee, would plug the Justice Department's top spot with a recess appointment if the Senate balked at Mukasey. "I don't believe a leaderless department is in the best interest of the American people or the department itself," Feinstein said.She also said she was heartened by his pledge to depoliticize the department and, further, to recommend the dismissal of any prosecutor who brings a case for political reasons. "That's a refreshing concept," Feinstein said.Sen. Arlen Specter, R-Pa., the committee's ranking member, said he had an "extended conversation" with the retired federal judge last night, and Mukasey gave him some firm answers on the legality of simulated drowning: "It was his legal opinion that the Congress has the constitutional authority to prohibit waterboarding ... and he said that it was his opinion that the president did not have Article II powers to disregard a congressional enactment to that effect." "That's good enough for me," Specter concluded.Committee Chairman Sen. Patrick Leahy D-Vt., who announced his opposition to Mukasey last Friday, was not swayed by Mukasey's latest answers to senators' concerns."Some have sought to find comfort in Judge Mukasey's personal assurance that he would enforce a future, new law against waterboarding if this Congress were to pass one," Leahy said. "Unsaid, of course, is the fact that any such prohibition would have to be enacted over the veto of this president."It was Schumer who first proposed Mukasey to replace Alberto Gonzales, who resigned as attorney general in September after being accused of politicizing the department, in part by overseeing the firing of nine U.S. Attorneys last year. Bush nominated Mukasey on Sept. 17. A spokesman for Senate Majority Leader Harry Reid, D-Nev., said that no date has been scheduled for a full Senate vote on Mukasey but that the vote is expected either later this week or early next week. As is common these days at congressional hearings, several protesters unveiled signs, and one interrupted the hearing. At the end of Feinstein's statement, a man shouted, "Shame on you, Senator. Shame on you. I'm from California." His outburst seemed to startle the lawmakers. He was quickly dragged away by Capitol Police officers. Signs held by the Code Pink group of protesters read "Does America have a conscience?" and "Dianne, Why?"Legal Times Reporter Joe Palazzolo contributed to this report.
