With a crucial Judiciary Committee vote on attorney general nominee Michael Mukasey scheduled for Tuesday, Sen. Charles Schumer (D-N.Y.) finds himself in a conundrum as fellow Democrats begin to turn against the man he publicly recommended for the nation’s top law enforcement spot.
The liberal firebrand who led the fight against former Attorney General Alberto Gonzales could find himself in the unusual position of siding with a minority of Democrats to vote in favor of fellow New Yorker Mukasey during next week’s Senate Judiciary Committee vote on the nomination.
And a senior Democrat on the Judiciary Committee indicated that may be the case, predicting Wednesday that if Mukasey survives Tuesday’s vote, he will win Senate confirmation. Enough Democrats should join Senate Republicans to ensure Mukasey’s installment as the next attorney general, the Senator said.
“If he gets through committee, it’s almost assured,” this Democrat said.
Still, it’s unclear how Schumer will vote on the nomination because the well-known spotlight seeker has been uncharacteristically mum on Mukasey’s continued refusal to clearly define waterboarding — an interrogation technique in which a detainee is subjected to a simulated drowning — as torture and illegal in the United States.
Asked Wednesday whether he was being noncommittal on Mukasey’s nomination, Schumer replied, “I am not commenting at the moment is what I am.”
Schumer said he was still evaluating Mukasey’s carefully crafted response to Democrats’ questions on his waterboarding stance, even as fellow Judiciary Committee members came out almost immediately Tuesday evening saying his response raised serious questions. Additionally, all the top-tier Democratic presidential candidates — including Schumer’s Empire State colleague Sen. Hillary Rodham Clinton — have come out against Mukasey’s nomination.
In a Tuesday letter to committee Democrats, Mukasey contended that waterboarding is “repugnant”and cannot be used by the military, but he said he could not say it is illegal across the board based on “hypothetical facts and circumstances.”
Democrats on the committee deflected questions about whether Schumer’s early endorsement of Mukasey has made it more difficult for them to oppose the attorney general hopeful based on his positions on both torture and executive power.
“You ask a valid question, but you should ask it of Sen. Schumer,” Judiciary Chairman Patrick Leahy (D-Vt.) said. “Seriously, I will make up my mind by myself. I’m not lobbying anybody one way or the other.”
Senate Majority Whip Dick Durbin (D-Ill.) — another Judiciary member and potential rival to Schumer in a future race for Democratic leader — said he did not hold anything against Schumer.
“I think Judge Mukasey was sailing through there until ... I asked him about five different kinds of torture,” said Durbin, who stated Wednesday that he would oppose the nomination.
Both Leahy and Durbin said they did not know whether Mukasey would garner enough votes in committee. “The question is, is there a Democrat ... or more than one Democrat who will vote with the Republicans?” Durbin asked.
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.