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It didn’t take long. “Do you consider waterboarding torture?” Sen. Edward Kennedy (D-Mass.) asked about 20 minutes into the confirmation hearing for deputy assistant attorney general nominee Mark Filip last week. Filip, clearly anticipating the question, said that while he found the method personally “repugnant,” he could not discuss its legality without having reviewed the department’s legal opinions. “�Repugnant’ is not the answer that meets the requirements in terms of the various statutes,” Kennedy said. It was reminiscent of — no, it was exactly the same answer Attorney General Michael Mukasey gave the Senate Judiciary Committee during his own confirmation hearings in October. But Filip had an additional excuse, telling the committee that he would not discuss an issue that his would-be boss was reviewing. “I don’t think I could get out in front of him like that,” Filip concluded. That was about as hairy as things got for Filip, 41, a judge for the U.S. District Court for the Northern District of Illinois. Revelations of the CIA’s destruction of videotaped interrogations in 2005 drove much of the questioning, and Filip seemed to satisfy the committee with his assurances that he would respect the oversight function of Congress if confirmed, though he stopped short of deferring to Congress entirely. Mukasey angered members of Congress this month for refusing to turn over information about the Justice Department’s role in the destruction of the tapes. In a letter to the Judiciary Committee’s chairman, Sen. Patrick Leahy (D-Vt.), and ranking member, Sen. Arlen Specter (R-Pa.), the attorney general said it was the department’s practice to withhold information in ongoing investigations to prevent the perception of political influence. At the Dec. 19 hearing, Specter probed for Filip’s understanding of congressional oversight, asking the judge whether he thought the department should cooperate in congressional investigations. Parallel investigations can and have occurred, but both branches “need to be mindful of one another,” particularly in criminal cases that could be jeopardized by public disclosure, Filip said. Specter tried again, noting Supreme Court decisions that have recognized the primacy of Congress’ oversight role even during criminal prosecutions. “I would hope, Senator, not to have to pick between the two,” Filip said. “If you had to choose, doesn’t the primacy of Congress prevail?” Specter pressed. “I would try very hard to find common ground,” Filip said. Later, when Sen. Orrin Hatch (R-Utah) criticized his colleagues on the committee for asking the Justice Department to be “independent from the president but dependent on Congress,” Filip appeared to agree. “At this point, it would make sense to give some breathing room to the department,” Filip said. Filip was a partner at Skadden, Arps, Slate, Meagher & Flom in Chicago until his appointment to the bench in 2004. (More than one senator mentioned that the judge was confirmed by a 96-0 vote.) The committee has not scheduled a vote. Leahy said last week that he and Specter had discussed asking the president to appoint Filip as acting deputy attorney general, the department’s No. 2 spot, until his nomination is put to a vote.
Joe Palazzolo can be contacted at [email protected].

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