Mukasey’s Fate Now in Doubt in the Senate

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The New York Sun

WASHINGTON — The nomination of Judge Michael Mukasey as attorney general is increasingly in doubt, with Senator Clinton joining other Democrats in opposing him and the chairman of the Judiciary Committee voicing disappointment with the retired federal jurist’s latest refusal to denounce a specific interrogation technique as torture.

Judge Mukasey, whose nomination once seemed a near-certainty due to the strong backing of Senator Schumer, has irritated lawmakers in both parties with his hesitance to discuss the issue of waterboarding, an interrogation method that involves simulated drowning. In a four-page letter sent to the committee last night in response to written questions, he said that while practices such as waterboarding seem “over the line” and are personally “repugnant,” he could not offer a legal opinion on whether they constituted torture.

His response failed to satisfy the Democratic committee chairman, Senator Leahy of Vermont. “Based on an initial review of his response to the letter, I remain very concerned that Judge Mukasey finds himself unable to state unequivocally that waterboarding is illegal and below the standards and values of the United States,” Mr. Leahy said in a statement last night.

Judge Mukasey’s letter also prompted a committee Democrat who is running for president, Senator Biden of Delaware, to state definitively that he will vote against his confirmation.

The committee is still awaiting additional responses from Judge Mukasey to written questions, and Mr. Leahy last night left the door open to supporting him once he reviews those answers. But he gave no indication as to when he would schedule a vote.

If Judge Mukasey does not win Senate approval, it would represent a huge blow to Mr. Schumer, whose political influence in Washington has soared in recent years. He is the third-ranking Democrat in the Senate and had floated the Bronx-born former judge to President Bush as a consensus choice for either the Supreme Court or attorney general. Mr. Schumer gave Judge Mukasey a warm introduction at his confirmation hearing and beforehand had predicted the Senate would confirm him by “a large majority.”

Complicating Judge Mukasey’s fate is criticism from Republicans who have not committed to supporting him. Those include the ranking member of the Judiciary Committee, Senator Specter of Pennsylvania, Senator Graham of South Carolina, and Senator McCain of Arizona, a presidential candidate.

Opposition to Judge Mukasey mounted among Democrats yesterday, with Mrs. Clinton, the party’s presidential front-runner, leading the way. Her decision, announced midday with a statement through her Senate office, could put her at odds with her home state colleague, Mr. Schumer. The move came less than a day after her top competitors, Senator Obama and John Edwards, came out against Judge Mukasey.

Mrs. Clinton cited the nominee’s responses to questions about interrogation techniques and executive power during his confirmation hearing. In addition to his comments on waterboarding, he has also suggested, to the dismay of several senators, that the president had the authority to disobey a constitutional federal statute in an effort to defend the nation.

“Judge Mukasey has been given ample opportunity — both at his confirmation hearings and in his subsequent submission to the Judiciary Committee — to clarify his answers and categorically oppose the unacceptable interrogation techniques employed by this administration,” Mrs. Clinton said. “His failure to do so leaves me no choice but to oppose his nomination.”

While several members of the Judiciary Committee were waiting to see Judge Mukasey’s written responses, Mrs. Clinton, like Mr. Obama before her, decided that Judge Mukasey shouldn’t have needed a second chance to make his views clear. She may have decided to put her statement out immediately because of the likelihood that she would be asked directly about Mr. Mukasey when the Democratic candidates met last night for a debate in Philadelphia.

Mr. Schumer, by contrast, appears inclined to give him the benefit of the doubt. “I’m going to give him the chance to put in detail what he means,” he told the New York Observer prior to the release of Judge Mukasey’s letter yesterday. He cited as more important the nominee’s commitment to remain independent from political influence by the White House, a perceived point of distinction from the most-recent attorney general, Alberto Gonzales. “As long as he continues to project that, I think he’ll be confirmed,” Mr. Schumer said. His office did not return repeated messages yesterday.

Judge Mukasey’s pledge of independence won him rave reviews from senators after the first day of his confirmation hearing, and he returned to that theme in his letter as he explained his unwillingness to discuss the legality of specific interrogation techniques. Referencing his commitment to exercise “independent judgment” in his dealings with the president, he wrote: “I told you that it would be irresponsible for me to do anything less. It would be no less irresponsible for me to seek confirmation by providing an uninformed legal opinion based on hypothetical facts and circumstances.”

He reiterated his previous promises to stand up to the president — and resign if necessary — if laws were being broken, and he said he would review all Justice Department interrogation practices once in office and prohibit those that he determined to be illegal.


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