Bush raises the stakes on Mukasey

Times Staff Writer

President Bush on Thursday raised the stakes in his contest with Senate Democrats over the nomination of Michael B. Mukasey as attorney general, saying they were subjecting the nominee to a unique and unfair standard and could cause the Justice Department to be left without leadership at a critical juncture.

Bush, in his most forceful remarks to date on the troubled nomination, strongly defended Mukasey’s refusal to say whether Mukasey believed that an interrogation technique known as water-boarding was illegal torture.

The issue has become the defining question for Senate Democrats in advance of Tuesday’s Senate Judiciary Committee vote on whether to confirm the retired federal judge to succeed Alberto R. Gonzales.


“If the Senate Judiciary Committee were to block Judge Mukasey on these grounds, they would set a new standard for confirmation that could not be met by any responsible nominee for attorney general,” Bush said in a speech to the Heritage Foundation, a conservative think tank in Washington.

“And that would guarantee that America would have no attorney general during this time of war.”

Mukasey has declined to offer an opinion on the legality of interrogation methods, saying he has not been briefed on which programs the administration is using. He has also said he does not want to make an uninformed judgment that could tip off terrorism suspects or expose American interrogators to legal action.

“It’s wrong for congressional leaders to make Judge Mukasey’s confirmation dependent on his willingness to go on the record about the details of a classified program,” Bush said.

Bush’s declaration appeared to do little to stem Democratic opposition to the nominee. On Thursday, Sen. Edward M. Kennedy (D-Mass.) became the fourth Democrat on the judiciary committee to declare his opposition to Mukasey.

The panel’s chairman, Sen. Patrick J. Leahy (D-Vt.), is expected to announce his position at a briefing in his home state today. Most observers think Leahy will oppose the nominee. His office declined to comment before the briefing.


Bush’s comments raised the question of whether he would nominate anyone else to succeed Gonzales if the Senate rejects Mukasey. The acting attorney general, Peter D. Keisler, had planned to leave the Justice Department until Bush asked him to serve as a temporary steward when Gonzales departed in mid-September.

There is speculation that Bush might install Mukasey during the congressional holiday break. That recess appointment would enable Mukasey to serve unconfirmed until a new Congress convenes, and Bush leaves office, in January 2009.

But congressional sources said they doubted that Senate Majority Leader Harry Reid (D-Nev.) would stand for such a maneuver.

They said Reid would probably try to outflank Bush by keeping some lawmakers in Washington over the break to ensure that the chamber was always in session.

White House Press Secretary Dana Perino was asked Thursday whether Bush was saying he would not put forward any other nominee if Mukasey were rejected.

“We don’t believe it would come to that,” she said. “No nominee could meet the test they’ve presented.”


Most observers think Mukasey would be confirmed if the full Senate voted on him. But Reid appears unlikely to allow a floor vote if the judiciary committee rejects the nomination.

There is precedent for the committee to forward a nomination to the full Senate without a recommendation or with a negative recommendation.

Leahy has indicated that he has no plans to permit that, but the idea could be raised by other lawmakers as a compromise.

Besides Kennedy, three other Democrats on the panel said this week they would oppose Mukasey: Joseph R. Biden Jr. of Delaware, Assistant Majority Leader Richard J. Durbin of Illinois and Sheldon Whitehouse of Rhode Island.

Among the three Democrats most likely to vote for Mukasey -- Charles E. Schumer of New York, Dianne Feinstein of California and Russell D. Feingold of Wisconsin -- none revealed a decision Thursday.

Spokespeople said the senators were still considering their decisions.

The most intense speculation focused on Schumer, who was an early supporter of his fellow New Yorker, even though he has acknowledged wide ideological differences.


“No nominee from this administration will agree with us on torture and wiretapping,” Schumer said in a statement Thursday. “The best we can hope for is someone who will rebuild the Justice Department and remain independent, even when pressured by this administration.

“I am weighing if Judge Mukasey is that person.”