Senate Confirms Mukasey By 53-40

By Dan Eggen and Paul Kane
Washington Post Staff Writer and
Friday, November 9, 2007

A divided Senate narrowly confirmed former federal judge Michael B. Mukasey last night as the 81st attorney general, giving the nominee the lowest level of congressional support of any Justice Department leader in the past half-century.

The 53 to 40 vote came after more than four hours of impassioned floor debate, and it reflected an effort by Democrats to register their displeasure with Bush administration policies on torture and the boundaries of presidential power.

The final tally gave Mukasey the lowest number of yes votes for any attorney general since 1952, just weeks after lawmakers of both parties had predicted his easy confirmation. Mukasey takes the place of Alberto R. Gonzales, who left under a cloud of scandal in September.

He avoided defeat only because a half-dozen Democrats voted in favor of the appointment along with Republicans and Democrat-turned-independent Joseph I. Lieberman (Conn.).

Mukasey, 66, had outraged many lawmakers and human rights groups by repeatedly refusing to classify waterboarding, a simulated-drowning technique, as torture. His few Democratic supporters said last night that, although they are troubled by his equivocal views on waterboarding, they believe Mukasey represents the best possibility for change at the troubled Justice Department. "This is the only chance we have," said Sen. Dianne Feinstein (D-Calif.).

The other Democrats in favor of the confirmation were Sens. Charles E. Schumer (N.Y.), Evan Bayh (Ind.), Thomas R. Carper (Del.), Mary Landrieu (La.) and Ben Nelson (Neb.).

The fractured tally signals that Mukasey will face a deeply skeptical Democratic Congress as he takes over at Justice, which has been demoralized and emptied of senior leadership in the wake of scandals.

The challenges facing Mukasey over the next 14 months are severe, from rebuilding confidence at Justice to crafting new strategies to combat a growing violent-crime problem. Mukasey has also pledged to review the Justice Department's controversial legal opinions on torture and detention policies, and he will have to cope with the outcome of a series of internal investigations into alleged misdeeds by Gonzales and his aides.

Although Mukasey is unburdened by political ties to President Bush, and cast by the administration as a clear-eyed reformer, his nomination was nearly derailed after he said he found waterboarding repugnant but did not have enough details to determine its legality. The issue quickly caught fire with grass-roots Democrats and was stoked further when all four Democratic senators running for president announced their opposition to Mukasey's confirmation.

Last night's debate was largely an internal argument among Democrats, as Republicans gave large chunks of their own time to allow those in the other party who supported the retired judge to speak.

Feinstein and Schumer, whose support for Mukasey on the Judiciary Committee allowed the nomination to proceed to the Senate floor, made no apologies for their yes votes, portraying them as pragmatic decisions aimed at improving the Justice Department.

Schumer, a key party leader who has come under sharp attacks for suggesting Mukasey as a nominee to the White House, said he is "wrong on torture -- dead wrong." But Schumer said Mukasey's answers on other questions show he will act as a bulwark against extremists within the Bush administration.

"Politics has been allowed to infect all manner of decision-making," Schumer said. "Now, we are on the brink of a reversal."

But a much longer procession of other Democrats railed against Mukasey and, in some cases, pointedly criticized Schumer and other supporters. Saying torture prompted the nation to "lose our way," Sen. Patrick J. Leahy (D-Vt.) said the Justice Department's internal legal justifications for waterboarding and other aggressive interrogation tactics had cost the U.S. government its standing around the globe.

"Torture should not be what America stands for," Leahy said. "How would our soldiers react if they found someone waterboarding another American soldier?"

Sen. Edward M. Kennedy (D-Mass.) said that "only an attorney general who's not afraid to speak truth to power" can lead the Justice Department.

Seven senators, including those running for president, did not vote. The late-night tally was thrown together unexpectedly after daylong negotiations between GOP and Democratic leaders.

Mukasey garnered the lowest number of yes votes among confirmed attorneys general since James P. McGranery, who was approved by a vote of 52 to 18 in 1952 during the Truman administration. The only recent competitor is John D. Ashcroft, who attracted 58 yes votes from the GOP-controlled Senate in 2001.

Staff researcher Madonna Lebling contributed to this report.

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