Democratic Defections Clear Path For Mukasey
2 Senators Say Nominee Is Best Bush Would Offer

By Dan Eggen and Paul Kane
Washington Post Staff Writer and washingtonpost.com Staff Writer
Saturday, November 3, 2007

The nomination fight over attorney general nominee Michael B. Mukasey effectively came to an end yesterday, as two key Senate Democrats parted from their colleagues and announced their support for the former judge despite his controversial statements on torture.

The orchestrated announcements by Sens. Charles E. Schumer (N.Y.) and Dianne Feinstein (Calif.) virtually guarantee that Mukasey will be approved by the Senate Judiciary Committee on Tuesday, to be followed by his likely confirmation in the full Senate later in the month.

The developments mark an important political victory for President Bush, who mounted a spirited and aggressive defense of Mukasey in recent days. They also underscore the pitfalls facing Democrats as the party struggles to stake out an independent policy on national security issues during a presidential campaign season.

A growing number of Democrats, including the four senators running for president, declared their opposition to Mukasey this week after his repeated refusal to say whether an interrogation technique known as waterboarding amounts to illegal torture under U.S. law. Mukasey called the tactic "repugnant" but said he could not assess its legality without access to classified material.

Feinstein and Schumer said in written statements that, while they were troubled by Mukasey's equivocation, they concluded the former federal judge is the best nominee Democrats could expect from the Bush administration.

Schumer -- a Democratic stalwart who had recommended Mukasey to the White House as a consensus candidate -- said Mukasey told him in a private meeting yesterday that he would enforce any anti-waterboarding law passed by Congress. Current law explicitly bans the practice within the Defense Department but not elsewhere.

"I deeply esteem those who believe the issue of torture is so paramount that Judge Mukasey's views on it should be the sole determinant of our vote," Schumer said. "But I must respectfully disagree."

Schumer said that "the Justice Department is a shambles" and that he hopes Mukasey, a former chief federal judge in New York, can "restore the department."

Feinstein said Mukasey is "not Alberto Gonzales," referring to the former attorney general who resigned in September in the wake of the firings of U.S. attorneys and other scandals that rocked the Justice Department. "Rather, he has forged an independent life path as a practitioner of the law and a federal judge," she said.

Along with nine Republicans' backing, Schumer and Feinstein's support would give Mukasey at least 11 yes votes on the 19-member Judiciary panel, which would send his nomination to the full Senate.

The late-afternoon announcements overshadowed a news conference held less than two hours earlier by the Judiciary Committee's chairman, Sen. Patrick J. Leahy (D-Vt.), who said he will vote against Mukasey. "There may be interrogation techniques that require close examination and extensive briefings," Leahy said. "Waterboarding is not among them."

Waterboarding generally involves strapping a prisoner to a board, tilting him so that his head is below his feet and pouring water over a cloth draped over his face to simulate drowning. It has been prosecuted as torture by the U.S. military since the Spanish-American War but was used by the CIA on three prisoners after the Sept. 11, 2001, attacks.

As senior committee Democrats such as Leahy and Sen. Edward M. Kennedy (Mass.) broke against Mukasey, Republicans privately viewed Schumer and Feinstein as a voting bloc, likely to support confirmation together or provide the final votes against the nominee. The GOP line of thinking was that, on such a controversial political issue for the Democratic base, no committee member would be the lone Democrat to support Mukasey in a 10 to 9 approval vote because of the political repercussions from his critics.

Schumer, who chairs the Democratic Senatorial Campaign Committee, is already facing a campaign by liberal activists urging online donors not to contribute to the DSCC if Schumer votes for Mukasey.

Schumer, who was the first senator to demand Gonzales's resignation and is well known for seeking the limelight, stayed unusually quiet over the past two weeks while he negotiated behind the scenes with the White House, according to sources familiar with his activities.

One Democratic aide said Schumer gave the administration guidance about what Mukasey should include in a letter to Democrats on waterboarding. The letter included some of the elements but fell short in key areas, stoking the controversy, the aide said.

Those concerns were mollified during Schumer's meeting yesterday with Mukasey, who said he would have no problem enforcing any future legislation barring waterboarding at the CIA, the aide said. The practice has already been administratively barred by the CIA director.

Once the nomination reaches the Senate floor, Republicans are assured that they would have more than 50 votes for Mukasey's confirmation, with Sen. Joseph I. Lieberman (I-Conn.) having already publicly joined Schumer and Feinstein in support of Mukasey, who is likely to be backed by all 49 Republicans. Democratic leaders have not discussed whether to launch a filibuster, aides said.

In appearances since Thursday, Bush has attacked Democrats for slowing the nomination and has said Mukasey is "not being treated fairly." White House spokesman Tony Fratto said that "he deserves a vote from the full Senate, where we are confident he would be confirmed."

One senior Democratic aide described the pitched battle over Mukasey's nomination as an important "values debate" that will allow Democrats to cast an opposition vote against waterboarding.

Many Republicans, however, are happy to have the Mukasey debate turn into a high-profile showdown over the treatment of terrorism suspects and contended that this is profitable terrain for the party. "Democrats are demonstrating their weaknesses on security matters, which will work to their disadvantage," said Sen. John Cornyn (R-Tex.).

Norman Ornstein, a scholar on Congress at the American Enterprise Institute, agreed that Republicans would "much rather be dealing with who's tougher on terrorists." But he also noted that Mukasey, who has no political ties to Bush, could turn into an independent force within the administration. Bush has won, Ornstein said, without being able to know precisely what he will get.

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