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Sen. Arlen Specter (R-Pa.), the ranking member on Judiciary, said that like him, “key people are undecided” on how they will vote when Mukasey’s confirmation comes up Tuesday. With that in mind, Specter declined to handicap the Judiciary Committee outcome, saying only that he’s hopeful the outstanding issues can be resolved and that the vote should go forward as scheduled.
“I’m ready to move ahead and cut bait,” Specter said.
Along with Durbin, Sen. Sheldon Whitehouse (D-R.I.), another Judiciary member, said he would vote against Mukasey. Other committee Democrats, such as Sens. Dianne Feinstein (Calif.) and Herb Kohl (Wis.), said they were not prepared to state how they would vote.
Initially, Mukasey’s confirmation appeared assured — largely because of Schumer’s support — but that began to fall apart during the second day of his confirmation hearing when he declined to define waterboarding as torture, in response to Durbin’s questioning.
One senior Senate Democratic aide said Schumer’s credibility with the Democratic Caucus had been damaged somewhat by the issue, because many saw his status as a member of Judiciary and the No. 3 Senate Democratic leader as giving them clearance to praise the nomination when it was first announced.
“That made a lot of Democrats think he must know what he’s talking about,” said the aide. “People followed his lead and now they’re having to dial it back.”
Schumer did not directly respond to a question about whether his early public support for Mukasey has put Senate Democrats as a whole in an awkward position, but said, “Everyone is looking at it and so am I.”
Not surprisingly, Republicans have seized on Schumer’s early support for Mukasey, noting that he floated the New York judge’s name for attorney general as early as April of this year — nearly four months before Gonzales actually stepped down.
Sen. Jon Kyl (R-Ariz.) said he was confused by Democratic opposition to Mukasey given that Schumer also recommended Mukasey for a lifetime appointment to the Supreme Court in 2003.
“If a man is qualified and independent enough to be on the Supreme Court, we should have far fewer concerns when he’s nominated to serve the remaining time of about one year as attorney general,” Kyl said on the floor Wednesday.