Even as Senate Judiciary Chairman Patrick Leahy (D-Vt.) announced his intention to vote against attorney general nominee Michael Mukasey, fellow Democratic Sens. Charles Schumer (N.Y.) and Dianne Feinstein (Calif.) announced they would support his confirmation in committee next week — a move that almost assures the one-time judge’s installment as the nation’s top law enforcement officer.
“I deeply esteem those who believe the issue of torture is so paramount that Judge Mukasey’s views on it should be the sole determinant of our vote,” Schumer said in a statement. “But I must respectfully disagree.
“The Justice Department is a shambles: politicized and demoralized. The belief and hope [is] that Justice Mukasey, with his experience, independence and integrity, can restore the department motivates my vote.”
In announcing her support for Mukasey, Feinstein said in a statement: “Bottom line: I hope that Judge Mukasey will fairly and even-handedly represent the American people, and direct the Department wherever the facts and the law lead, not where the White House dictates. Our nation needs a strong and independent Attorney General, and I believe that Judge Mukasey will rise to the challenge.”
Though Schumer was an early backer of Mukasey — and even introduced the fellow New Yorker at his confirmation hearing last month — the nominee’s refusal to define a controversial interrogation technique as torture had cast doubt on his ability to advance out of committee.
While most, if not all, of the panel’s nine Republicans are expected to vote for Mukasey on Tuesday, his nomination could not be reported favorably to the Senate without at least one Democratic backer. With Leahy, five Judiciary Committee Democrats already have pledged to oppose the nomination at Tuesday’s vote. Most other Democrats on the committee are likely to follow, but remain publicly undecided.
Beyond Schumer, Feinstein’s support could guard against the unlikely prospect that Judiciary ranking member Arlen Specter (R-Pa.) would oppose Mukasey. Specter has sent signals that he will back the nomination, but earlier this week that he had not made up his mind on the nomination and said he was troubled by his response to the panel’s questions on torture.
When he called on former Attorney General Alberto Gonzales to resign earlier this year, Schumer specifically recommended the Bush administration tap Mukasey for the post. That early endorsement from Schumer translated into widespread Democratic support for the nomination, fueled in part by the party’s ire over the handling of the Justice Department by Gonzales.
But many Judiciary Democrats were troubled when Mukasey, at his confirmation hearing two weeks ago, declined to define waterboarding — an interrogation technique in which a person is subjected to simulated drowning — as torture. Even Schumer had said that Mukasey’s inability to answer questions about the technique concerned him.
Still, several Senate sources said Schumer, along with Sens. Lindsey Graham (R-S.C.) and John McCain (R-Ariz.), advised Mukasey on how to respond to Senators’ follow-up questions on waterboarding. One well-placed Judiciary Committee source noted that Schumer was “consulted. He made suggestions. Some were accepted. Some were rejected.”
It was unclear, however, whether even the acceptance of all of Schumer’s recommendations would have prompted more Democrats on the panel to ultimately support Mukasey.
Leahy certainly didn’t appear satisfied. In his announcement of opposition on Friday afternoon, the Judiciary chairman said he was troubled by both Mukasey’s answers to the committee on the waterboarding practice and his stand on executive privilege.
“I am eager to restore strong leadership and independence to the Department of Justice,” Leahy said. “I like Michael Mukasey. I wish that I could support his nomination. But I cannot.
“America needs to be certain and confident of the bedrock principle — deeply embedded in our laws and our values — that no one, not even the president, is above the law,” Leahy said.
While Leahy, Schumer and Feinstein having now stated their positions, there are three Democrats on the panel who have yet to publicly declare their plans. Sen. Russ Feingold (D-Wis.), one of those five, said in a statement Friday that Mukasey would be an improvement over Gonzales, but he still has concerns.
“He may be the best nominee we can get from this administration in this respect. But I am concerned about his views on executive power, and I am weighing whether his answers to questions in that area adequately demonstrate a commitment to the rule of law,” Feingold said.
No matter, the Judiciary Committee vote Tuesday will be a nail-biter, and Senators already are bracing for another test if and when it comes to the floor later this month. Even Senate Democrats have suggested that Mukasey likely would win the backing of all 49 Republicans and enough Democrats to win confirmation, but nothing is guaranteed.
With that in mind, the chamber’s most conservative Democrat, Sen. Ben Nelson (Neb.), is preparing for playing a role in a prospective floor debate. Nelson will meet with Mukasey on Monday afternoon.
Former Sen. Scott Brown, R-Mass., candidate for U.S. Senate in New Hampshire, holds his hand over his heart during the singing of the national anthem as he waits to take the stage for his town hall campaign rally with Sen. John McCain at the Pinkerton Academy in Derry, N.H., on Monday, Aug. 18, 2014.