Mukasey all but a shoo-in for approval

Times Staff Writer

Michael B. Mukasey appeared on Friday to be all but assured of becoming the nation’s 81st attorney general when two Senate Democrats broke ranks and said they would support the retired federal judge to head the Justice Department.

While acknowledging serious concerns about his views on interrogation techniques, Sens. Dianne Feinstein of California and Charles E. Schumer of New York said they would vote to confirm Mukasey when the Senate Judiciary Committee takes up his nomination to succeed Alberto R. Gonzales on Tuesday.

In separate statements Friday afternoon, the lawmakers praised the 66-year-old New Yorker for his legal heft and independence and said they believed he would be a powerful antidote for the Justice Department, still reeling from Gonzales’ two-year, politically charged tenure.

“First and foremost, Michael Mukasey is not Alberto Gonzales,” Feinstein said. “Rather, he has forged an independent life path as a practitioner of the law and a federal judge.”

She also cited Mukasey’s extensive experience on national security issues and said his answers to lawmakers who have been probing his qualifications were “crisp and succinct, and demonstrated a strong, informed and independent mind.”


Schumer said he believed Mukasey would “clean the stench of politicization out of the Justice Department.”

“Judge Mukasey is not my ideal choice,” Schumer said. But, he said, Mukasey was “far better than anyone could expect from this administration.”

The twin announcements, coming within minutes of each other, were the latest twist in a six-week nomination saga in which Mukasey’s confirmation at first seemed to be a foregone conclusion, then looked imperiled and now appears to be back on track.

His prospects had dimmed because of mounting concern after his confirmation hearing last month, when Mukasey refused to declare that a coercive interrogation technique known as waterboarding was illegal torture. His carefully worded explanation reminded some members of Gonzales, whose frequent evasions often disillusioned congressional Democrats and Republicans alike.

Schumer held a closed door meeting with Mukasey on Friday in which the nominee appeared to offer a crucial assurance: If Congress chose to enact a law banning so-called enhanced interrogation techniques, Bush would have to follow it.

“He flatly told me that the president would have absolutely no legal authority to ignore such a law,” Schumer said. “He also pledged to enforce such a law and repeated his willingness to leave office rather than participate in a violation of law.”

That pledge seemed likely to jolt support for anti-torture legislation that is pending in the Senate. Feinstein said Friday that she would favor including language to that effect in other pending legislation overhauling the foreign intelligence surveillance law.

Bush moved to salvage Mukasey’s nomination Thursday, accusing Democrats of setting an unfair standard for his nominee that threatened to leave the Justice Department without permanent leadership “at a time of war.”

The White House had no direct comment Friday on the decisions of the two Democrats. Spokesman Tony Fratto said: “Judge Mukasey is exceptionally qualified and would be an outstanding attorney general. He deserves a vote from the full Senate, where we are confident he would be confirmed.”

Earlier Friday, Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) announced that he would oppose Mukasey, saying the former judge’s refusal to brand waterboarding -- a kind of simulated drowning that dates to at least the Spanish Inquisition -- as torture should not be countenanced.

“If an American was captured and waterboarded, would we consider it torture and want to raise bloody hell about it? Of course we would,” Leahy said. “There are fundamental issues that require moral and legal clarity and the willingness to act on our convictions, and this is one of them.”

Leahy was the panel’s fifth Democrat to signal opposition to Mukasey.

With Republicans lined up behind Bush’s pick, it will require a single “yes” vote from a Democrat on the committee Tuesday to ensure that Mukasey’s name is sent to the Senate floor. Congressional observers think Mukasey would easily win a vote in the full Senate. Assuming the committee clears his name, such a vote will probably occur before Thanksgiving.

The breakaway Democrats are an unlikely couple: Schumer, one of the Senate’s most liberal members, and Feinstein, one of its more conservative Democrats.

Schumer had been an early proponent of Mukasey but faced making a tough choice as support among fellow Democrats began to unravel.

“This is an extremely difficult decision,” he said Friday. “When an administration so political, so out of touch with the realities of governing and so contemptuous of the rule of law is in charge, we are never left with an ideal choice.”

Feinstein elaborated on her reasons for supporting Mukasey in an opinion piece in today’s Los Angeles Times.

“The Justice Department is in desperate need of effective leadership,” Feinstein wrote. “It is leaderless, and 10 of its top positions are vacant. Morale among U.S. attorneys needs to be restored, priorities reassessed and a new dynamic of independence from the White House established.

“I believe that Judge Mukasey is the best nominee we are going to get from this administration and that voting him down would only perpetuate acting and recess appointments, allowing the White House to avoid the transparency that confirmation hearings provide and to diminish effective oversight by Congress.”

Feinstein demonstrated once again a propensity to cross party lines in order to achieve her personal policy aims, wielding her power as a moderate in a sharply divided Congress.

It was the second time in recent months that she has sided with a contentious nominee of an unpopular president facing an uncertain fate through the Democratic-controlled Senate. In August, she cast the deciding committee vote to confirm the nomination of Judge Leslie H. Southwick to a seat on the federal appeals court. The vote infuriated liberal interest groups who questioned Southwick’s civil-rights record.

“It is regrettable that Dianne Feinstein had an opportunity to stand up for the rule of law and chose not to do so,” Nan Aron, president of the Alliance for Justice, said Friday afternoon. “Unfortunately, her announcement is consistent with recent votes she’s taken that undermine American values and freedoms.”