Attorney general nominee's confirmation may now be in doubt

Michael Mukasey.
Michael Mukasey. Chuck Kennedy / MCT

WASHINGTON — The confirmation of attorney general nominee Michael Mukasey shifted Wednesday from a foregone conclusion to a question mark as top Senate Democrats said they couldn't support him.

The growing opposition from several Senate Judiciary Committee members came after Mukasey refused to clarify his stance on torture in a 170-page response to judiciary members. The committee, of which a majority are Democrats, is scheduled to vote on whether to send his confirmation to the full Senate on Tuesday.

Democratic presidential candidate Joseph Biden of Delaware and Sen. Richard Durbin, D-Ill., said they couldn't support Mukasey's confirmation because he refused to explicitly condemn waterboarding as torture.

Late Wednesday, Sen. Sheldon Whitehouse, D-R.I., took to the Senate floor to announce that he planned to oppose Mukasey because of similar concerns, although he described the nominee as a "good man."

Sen. Patrick Leahy, D-Vt., chairman of the Judiciary Committee, remained mum Wednesday, reflecting the uncertainty of Mukasey's fate.

New York Sen. Chuck Schumer, one of Mukasey's leading Democratic supporters, refused to say where he stood Wednesday. "I'm reading the letter; I'm going over it," he said. "That's all I'm going to say."

Other committee members echoed his indecision. Sen. Dianne Feinstein, D-Calif., had initially indicated that she might support him, but said Wednesday: "I need to think more about it. I very much regret that he couldn't have just been clear and definitive."

Sen. Russ Feingold, D-Wis., who'd led some of the most aggressive questioning during Mukasey's confirmation hearings also remained undecided, an aide said.

Meanwhile, several Democratic presidential candidates have voiced their opposition, including front-runner Sen. Hillary Clinton of New York, Illinois Sen. Barack Obama and former Sen. John Edwards.

Despite the wavering, Senate Democratic aides predicted that a majority of the 19-member committee would vote in favor of Mukasey's confirmation. Only one Democratic vote is needed to get the confirmation to the full Senate. The aides asked to remain anonymous because they weren't authorized to speak for the committee.

Republican Sens. Arlen Specter of Pennsylvania and Lindsey Graham of South Carolina voiced support for Mukasey, signaling a possible consensus of the Republicans on the committee. Initially, both senators had expressed concerns about Mukasey's stance on waterboarding.

"I think that the extensive letter which Judge Mukasey has submitted goes about as far as he can go," Specter said.

However, Specter recommended a closed-door session of committee members to address any lingering questions.

"No doubt the confirmation is at risk at this moment because he has not answered the question categorically," Specter said.

Graham said Mukasey's responses "helped his cause with me and I'm favorably inclined to support him."

Bush administration officials said they remained confident that Mukasey would not only be approved by the committee, but also by the full Senate.

"If Judge Mukasey can't be confirmed for attorney general, then no one can," said White House spokesman Tony Fratto.

Many Democrats, however, maintain that the issue of waterboarding is crucial to their support because it represents their larger concerns about the Bush administration's sweeping assertion of executive powers.

President Bush has said the United States doesn't torture, but he refuses to rule out waterboarding, a interrogation technique that involves pouring water on a prisoner's face to trigger the gag reflex. Mukasey's stance on the technique could have bearing on the legal liability of CIA interrogators who may have relied on waterboarding.

Mukasey, a retired federal judge, said in his written statement Tuesday that he couldn't speculate on the legality of waterboarding because he hadn't been briefed on any classified practices. However, he pledged to scrutinize interrogation techniques.

"If, after such a review, I determine that any technique is unlawful, I will not hesitate to so advise the President," he said in a written statement to the committee.

Some of the administration's critics said they recognized Mukasey's difficult predicament. Whitehouse said he struggled with his decision to vote against Mukasey, who he said could be described as an "innocent victim" in a clash between Congress and the president.

But Whitehouse said he felt he had to vote against him because the matter represented a "decision on who we are and what we are as a nation."