Mukasey heads to likely approval in Senate; panel OKs nomination 11-8
Two Democrats joined with all nine Republicans on the Senate Judiciary Committee on Nov. 6 to approve 11-8 the nomination of retired federal judge Michael B. Mukasey as attorney general, setting the stage for his probable confirmation this week by the full Senate.
Democratic Sens. Charles E. Schumer of New York and Dianne Feinstein of California broke with their party to support the nomination, saying they were confident that as attorney general, Mr. Mukasey would enforce any law enacted by Congress ending “waterboarding,” an interrogation technique that simulates drowning.
“The judge made clear to me that were Congress to pass a law banning certain interrogation techniques, we would clearly be acting within our constitutional authority,” Mr. Schumer said. “And he flatly told me the president would have absolutely no legal authority to ignore such a law.
“He also pledged to enforce such a law and repeated his willingness to leave office rather than participate in a violation of law,” he said.
But committee Chairman Sen. Patrick J. Leahy described Mr. Mukasey’s promise as disingenuous, saying that while “some have sought to find comfort” in his personal assurance he would enforce a new law against waterboarding if Congress were to pass one, “unsaid, of course, is the fact that any such prohibition would have to be enacted over the veto of this president.”
The Vermont Democrat said that although he wished he could support the nomination, he was not sure Mr. Mukasey would stand for limitations on executive power. He accused President Bush of violating U.S. obligations under the Convention Against Torture and the Geneva Conventions and of disregarding U.S. statutes forbidding torture.
“What we need most right now is an attorney general who believes and understands that there must be limitations on executive power,” he said. “America needs to be certain of the bedrock principles in our laws and our values that no president and no American can be authorized to violate. Accordingly, I vote no on the president’s nomination.”
Joining him were Democratic Sens. Edward M. Kennedy of Massachusetts, Joseph R. Biden Jr. of Delaware, Herb Kohl and Russ Feingold, both of Wisconsin, Richard J. Durbin of Illinois, Benjamin L. Cardin of Maryland and Sheldon Whitehead of Rhode Island.
They balked at the nomination when, during the second day of his confirmation hearings, Mr. Mukasey refused to say whether waterboarding was constitutionally illegal or an example of prohibited torture.
Mr. Kennedy said that after “six long years of reckless disregard for the rule of law by this administration, we cannot afford to take our chances on the judgment of an attorney general who either does not know torture when he sees it, or is willing to look the other way to suit the president.”
The committee’s ranking Republican, Sen. Arlen Specter of Pennsylvania, said that although some of Mr. Mukasey’s answers during the confirmation hearings were “flimsy,” the Justice Department is “dysfunctional” and needed new leadership.
Mr. Specter said he talked with Mr. Mukasey on Nov. 5 and was assured he would support an effort by Congress to ban waterboarding and would quit if the president refused to follow the law.
Joining Mr. Specter in voting for the nomination were Republicans Sens. Orrin G. Hatch of Utah, Charles E. Grassley of Iowa, Jon Kyl of Arizona, Jeff Sessions of Alabama, Lindsey Graham of South Carolina, John Cornyn of Texas, Sam Brownback of Kansas and Tom Coburn of Oklahoma.
Mr. Mukasey, 66, is a retired federal judge, having served for 18 years in U.S. District Court in New York. He was nominated by Mr. Bush to succeed Alberto R. Gonzales, who resigned after a nine-month investigation by the Senate and the House into accusations he had politicized the Justice Department.
Mr. Mukasey told the Judiciary Committee that although waterboarding was “personally repugnant” to him, he could not render a legal decision on its legality or constitutionality without further study. The Bush administration has refused to say whether it ever used waterboarding in questioning suspected terrorists.
Sen. Charles E. Schumer (left) conferred with fellow Democrat Sen. Richard J. Durbin after voting to confirm Michael B. Mukasey’s appointment as attorney general.