Senate Judiciary Committee members (l to r) Senators. Orrin Hatch (R-UT), Arlen Specter (R-PA), Chairman Patrick Leahy (D-VT) and Edward Kennedy (D-MA) on November 6, 2007. (Photo by Chip Somodevilla/Getty Images)
by James Oliphant
The Senate Judiciary Committee Tuesday approved the nomination of Michael Mukasey as the next attorney general of the United States, likely ensuring his confirmation by the full Senate.
The vote was tight, 11-8, with two Democratic senators, Dianne Feinstein (Calif.) and Charles Schumer (N.Y.) crossing party lines to join Republicans in endorsing Mukasey.
Last month, at his hearing before the committee, Mukasey’s confirmation appeared secure, as senators from both parties praised his qualifications – he spent 18 years as a Manhattan federal judge – and his independence from the White House political apparatus.
But Mukasey, 66, courted a firestorm when he refused to declare that the interrogation technique called “waterboarding” constituted illegal torture under U.S. law. Mukasey cited an unfamiliarity with the practice and a reluctance to provide a legal opinion without more information as the primary reason.
That led, last week, to several Democrats, including the chairman of the committee, Sen. Patrick Leahy (Vt.) and the frontrunner for the presidential nomination, Sen. Hillary Clinton (N.Y.) to oppose Mukasey’s nomination. At the committee meeting Tuesday, Leahy said the administration – and Mukasey – had put Americans abroad at risk by not condemning waterboarding, saying they were now vulnerable to the practice.
“The U.S. government is basically saying to American citizens, if you go abroad, you are on your own,” Leahy said.
But the impending showdown was defused when Schumer and Feinstein broke ranks. For Schumer, the choice couldn’t have been easy. As Mukasey’s home state senator, he was a steadfast patron of the former judge, even introducing him to the committee. For Feinstein, it marks the second time in as many months that she has defied her Democratic colleagues on the committee. Last month, she supported the nomination of federal appeals judge Leslie Southwick, earning the ire of civil rights groups. Those groups are even less happy with Feinstein today.
CodePink members mock Senate Judiciary Committee member Sen. Dianne Feinstein (D-CA) and President Bush on November 6, 2007 (Photo by Chip Somodevilla/Getty Images)There was also some doubt as to which way the ranking member of the committee, Sen. Arlen Specter (R-Pa.) would vote. In a long colloquy, Specter explained that he found Mukasey’s answers concerning waterboarding “unsatisfactory” until Specter personally called Mukasey Monday. Specter said the nominee assured him that if Congress passed a law declaring waterboarding to be illegal torture, Mukasey would enforce it. Specter said Mukasey also told him that the president could not supersede Congress judgment by executive order. That was enough, Specter said, to gain his support.
“I think Judge Mukasey went as far as he could go,” Specter said. “We’re the people who ought to decide it.”
Congress had the opportunity to declare waterboarding illegal when it passed the Military Commissions Act in 2006, but the effort failed on the Senate floor by a close vote.
Sen. Edward Kennedy (D-Mass.), in announcing his opposition to Mukasey, implicitly criticized Specter’s rationale, saying “We are supposed to find comfort . . . that he will enforce the laws that we pass? Have our standards sunk so low?”
Kennedy described waterboarding at length, detailing how it involves immobilizing the prisoner, with his feet elevated. Cellophane is placed over the mouth and water is then poured on the face, inciting the gag reflex and creating a fear of impending death. “Waterboarding is a barbaric practice,” he said. “It’s an ancient technique of tyrants.”
Sen. Richard Durbin (D-Ill.) voted by proxy to oppose Mukasey. He was not present for the meeting. The full Senate could take up the nomination later this week. Mukasey is expected to gain the more than 60 votes needed to prevent a filibuster.
Protesters from the activist group Code Pink booed and hissed when the vote was announced, causing Leahy to warn them against further outbursts.
