Undecided Schumer May Be Key to Mukasey's Chances

Schumer originally suggested Mukasey to head the Justice Department eight months ago, after the senator became the first Democrat to call for the resignation of then-Attorney General Alberto R. Gonzales over his handling of the firings of nine U.S. attorneys. Schumer, whose chief counsel is a former federal prosecutor in the Manhattan courts that were overseen by Mukasey, had also recommended him as a worthy Supreme Court candidate in 2005.

But Mukasey, who was sailing to an easy confirmation, alarmed many Democrats on Oct. 18 when he repeatedly refused to say whether waterboarding is torture. The technique, which simulates drowning, has been used by the CIA but is barred by the U.S. military and has been widely condemned as torture by human rights groups.

Mukasey tried to mollify Democrats by saying in a letter earlier this week that he found the technique personally "repugnant," but he reiterated that he could not determine whether it is illegal without being privy to classified details.

Mukasey's response has been deemed insufficient by many Democrats and sparked an outcry among antiwar liberals who provided much of the political energy -- and financial contributions -- that propelled Democrats to the majority. Schumer, who chairs the Democratic Senatorial Campaign Committee, needs those supporters as he tries to expand the majority next year. One group, Democrats.com, began an e-mail campaign last night urging its supporters to withhold donations to Schumer if he votes for Mukasey.

During yesterday's telephone interview, Schumer said that his decision will hinge largely on whether he believes Mukasey would be independent of the White House. He said that was "called into question" by some of Mukasey's views.

"The question is whether he will show the requisite independence," Schumer said. "That's what I want to clear in my own head. . . . If Congress passes a law forbidding waterboarding, would he enforce that?"

Schumer's colleagues are keenly aware of his awkward position. In announcing his opposition to Mukasey on Wednesday, Majority Whip Richard J. Durbin (D-Ill.) said he could not predict the outcome of the close vote and noted the undecided posture of Schumer, with whom Durbin lives in a group house of Democrats. "I haven't polled my colleagues, including the one I live with," Durbin said.

Some Republicans, meanwhile, are openly chortling at Schumer's dilemma.

"Mukasey and Schumer, aren't they partners? Wasn't that the Schumer pick?" Sen. Trent Lott (R-Miss.) said yesterday. "It's become a problem for him."