Tide may be turning on Mukasey nomination

Opposition among Democrats to Michael B. Mukasey’s nomination as attorney general grew Wednesday, heightening the intrigue surrounding a confirmation that once seemed assured.

In sometimes passionate debate on the Senate floor, two more Democrats on the judiciary committee, Assistant Majority Leader Richard J. Durbin of Illinois and Rhode Island Sen. Sheldon Whitehouse, said they would vote against Mukasey when the committee took up his nomination Tuesday.

Though praising Mukasey as a desirable alternative to predecessor Alberto R. Gonzales, both men said they could not support his nomination to lead the Justice Department because of his continuing refusal to pass what has become a litmus test for Democrats in the nomination debate: declaring that an interrogation method known as water-boarding is not only repugnant but illegal.

The announcements added drama to the upcoming Senate showdown, although it was still unclear how the committee vote would come out. Assuming that the nine Republican members of the panel support Mukasey, it would take just one of the 10 Democrats to vote “yes” to assure that his name is sent to the floor for a confirmation vote.

In addition to Durbin and Whitehouse, Sen. Joseph R. Biden Jr. (D-Del.) has said he will not support the nomination. The other Democrats on the panel -- Sens. Dianne Feinstein of California, Charles E. Schumer of New York, Patrick J. Leahy of Vermont, Edward M. Kennedy of Massachusetts, Herb Kohl and Russell D. Feingold of Wisconsin and Benjamin L. Cardin of Maryland -- are officially undecided.

A crucial vote will be cast by Schumer, a Mukasey supporter who praised his fellow New Yorker’s integrity and independence early on, saying he had credentials that the morale-sapped Justice Department needed.

Some observers said they believed it would be hard for Schumer to change course and oppose the nomination after his enthusiastic support. Ironically, one of the most relentless critics of the Bush administration might end up casting the vote that assures the White House-backed nominee is cleared.

Schumer refused to say Wednesday how he would vote. “I’m not going to comment on Judge Mukasey here. I’m reading the letter, I’m going over it,” Schumer told reporters hours after the nominee submitted a package of written answers to questions posed by lawmakers since Mukasey’s confirmation hearing two weeks ago.

The too-close-to-call nomination is in sharp contrast to the bipartisan acclaim Mukasey, 66, drew in mid-September, when Bush nominated the retired federal judge to succeed Gonzales.

The White House on Wednesday said Bush stood behind his nomination of Mukasey. “No one is ready to declare it DOA,” Press Secretary Dana Perino said.

Mukasey appeared to be on his way to achieving the unanimous support of Republicans on the panel. Sen. Lindsey Graham (R-S.C.), a former military lawyer who had early reservations about the nominee, said Wednesday he would probably vote for his confirmation. “President Bush tried to reach out and find a consensus candidate,” Graham said in an interview. “We need more of that, not less. He could have picked somebody that would have been a nuclear bomb for the Senate.”

Graham was among a group of GOP senators who wrote Mukasey on Wednesday saying they expected him to publicly declare water-boarding off limits once he assumed office and had a chance to be briefed on administration interrogation programs and the legal opinions behind them.

Mukasey offered some insights into his thinking late Tuesday in his voluminous filing of answers to the questions. He said he would be disinclined to appoint a special prosecutor to investigate whether criminal charges should be brought against Gonzales and other former Justice Department officials in connection with the firing of nine U.S. attorneys last year. He said he believed career department lawyers should conduct such an investigation.

Mukasey characterized Steven G. Bradbury, a Justice Department legal advisor whose pro-Bush opinions have been a target of Democrats, as “a highly competent and dedicated public servant.” He disclosed that of the 44 law clerks he hired during his 18 years on the federal bench, none were African American.

But it is his view on water-boarding, an interrogation method that dates at least to the Spanish Inquisition, that apparently will make or break his nomination.

Mukasey told the committee Tuesday that he believed the technique -- in which the interrogation subject is strapped to a board, his face is covered with a towel, and water is poured into his mouth and nose to create a sensation of drowning -- was “over the line” and “repugnant.” But he said he did not have enough information to say whether the method was illegal torture, an assurance that Democrats had sought.

Most Democrats on the panel said Wednesday that they were continuing to wrestle with how they would vote. A spokeswoman for Leahy, the judiciary committee chairman, said he was chagrined with the answers Mukasey had provided, but was undecided and might not reveal his decision until Tuesday’s vote.

One concern among Democrats is the possibility that no nominee Bush puts forward would answer the torture question in the way they want. That could leave the Justice Department without the permanent leadership that Democrats have said has been so lacking.

Durbin and Whitehouse said there were more transcendent issues at stake, however, and that the Congress needed to send a message that it would not equivocate on the issue of torture.

“Will we join that gloomy historical line leading from the Inquisition, through the prisons of tyrant regimes, through gulags and dark cells, and through Saddam Hussein’s torture chambers? Will that be the path we choose?” Whitehouse said in remarks on the Senate floor.

“If we allow the president of the United States to prevent, to forbid a would-be attorney general of the United States -- the most highly visible representative of our rule of law -- from recognizing that bright line, we will have turned down that dark stairway. I cannot stand for that.”

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rick.schmitt@latimes.com