CQ TODAY – LEGAL AFFAIRS
Nov. 6, 2007 – 9:05 p.m.
Mukasey Confirmation Looking Likely, but Filibuster Remains a Possibility

Michael Mukasey appears headed for confirmation as attorney general before Thanksgiving, but Senate Democratic leaders are leaving open the possibility that there might be an attempt to filibuster the nomination.

After the Senate Judiciary Committee voted, 11-8, to approve the nomination Tuesday, Majority Leader Harry Reid of Nevada and Majority Whip Richard J. Durbin of Illinois, both of whom oppose the nomination, declined to say whether Mukasey’s other Democratic opponents might try to block his confirmation.

“If there is a non-unanimous vote coming out of the Judiciary Committee, it makes it extremely difficult on the Senate floor to tell people we’re going to take a caucus position when individual senators voted their conscience in committee,” Reid said. “It just isn’t the way this institution works. . . . And there may be people disappointed in Mukasey being reported out of the committee. That’s why there will be a really heavy vote against him here on the floor.”

Despite some Democrats’ misgivings, Mukasey still seems a good bet for confirmation because lawmakers are eager to install new leadership at the scandal-plagued Justice Department.

“We need a leader to take care of the department, not a caretaker, as the president has promised if we reject Judge Mukasey,” said Charles E. Schumer, D-N.Y., who was one of Mukasey’s early backers.

A Senate Democratic aide said that Reid is neither encouraging nor discouraging a filibuster. One likely scenario, either this week or next, is a cloture vote to limit debate on the nomination, followed by a confirmation vote if the requisite minimum of 60 senators votes to invoke cloture. All 49 Republicans are expected to back Mukasey.

But even if any Democrats decide to attempt a filibuster, Mukasey probably has enough Democratic support to be confirmed. Schumer and Dianne Feinstein of California joined all nine of the panel’s Republicans in supporting Mukasey, to the dismay of liberal activists.

After the committee vote, two Democrats who do not serve on the panel, Kent Conrad of North Dakota and Mary L. Landrieu of Louisiana, said they were A-leaning toward voting for Mukasey. Ben Nelson of Nebraska announced his support for Mukasey on Monday.

Four other potential Democratic supporters — Thomas R. Carper of Delaware, Mark Pryor of Arkansas, Ken Salazar of Colorado and Bill Nelson of Florida — said they would wait to make a decision until they met with Mukasey privately this week.

Mukasey’s supporters on the Judiciary Committee said he was a well-qualified candidate. “I think that the balance is decisively in favor of confirming Judge Mukasey,” said Arlen Specter of Pennsylvania, the committee’s ranking Republican.

Nonetheless, many Democrats on the panel renewed their concerns about Mukasey’s answers to questions about coercive interrogations, particularly the technique known as waterboarding, which simulates drowning. Mukasey has repeatedly declined to say whether he thinks the technique constitutes torture.

“The president says that we do not torture,” said Chairman Patrick J. Leahy, D-Vt. “But then his lawyers redefine torture, redefine it down, in secret memos, in fundamental conflict with American values and law.”

Specter said he talked to Mukasey on Monday and received the same assurances that Mukasey had already given Schumer: that Congress has the constitutional authority to ban waterboarding and that President Bush could not ignore such a law.

But Democratic leaders rejected the suggestion that Congress, rather than Mukasey, has not said enough about waterboarding. “My personal feeling is, it’s already against the law. I don’t know we have to ban something that’s against the law,” Reid said. “If we ban waterboarding, do we next have to ban thumb screws?”

Congressional concerns about addressing the disarray at the Justice Department seem likely to trump any misgivings about the nominee. The department’s top three positions are vacant, as are several other senior positions. And senators seem convinced that Mukasey is serious about his expressed willingness to disagree with Bush. Many believe that if Mukasey is rejected, the president might not put forward another nominee.

“I don’t believe a leaderless department is in the best interest of the American people or the department itself,” Feinstein said Tuesday. “And I think that’s something really worthy of consideration.”

Source: CQ Today
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