The prospects of Michael Mukasey's confirmation as the nation's 81st attorney general grew dimmer Wednesday after he again declined to call waterboarding torture and endorsed many of President Bush's positions on executive power.
Even his chief Democratic patron, Sen. Chuck Schumer of New York, refused to say whether he would vote for Mukasey during the Judiciary Committee's consideration of the nomination on Tuesday.
"I'm not going to comment on Judge Mukasey here. I'm reading the letter, I'm going over it," Schumer told reporters Wednesday, hours after the retired federal judge submitted more than 170 pages of elaboration on his positions.
Nowhere in his responses did Mukasey give the definitive answer Democrats were demanding and have made a staple of their campaign message: that so-called waterboarding, an interrogation technique that simulates drowning, amounts to torture and is illegal.
None of the committee's 10 Democrats, nor its most senior Republican, have said this week that they will vote to advance Mukasey's nomination to the Senate floor with a favorable recommendation. It was doubtful that Majority Leader Harry Reid, D-Nev., would bring it up for a vote by the full Senate if the nomination fails in committee.
The White House, meanwhile, said Mukasey was well qualified and answered the committee's questions the best he could, considering he is not cleared to view classified documents on interrogation techniques.
Rethinking votes
"No one is ready to declare it DOA," White House press secretary Dana Perino said of the confirmation's prospects.
True, but the political tea leaves didn't look promising, according to numerous interviews with senators on the 19-member committee.
"I need to think more about it," Sen. Dianne Feinstein, D-Calif., said Wednesday morning, hours after Mukasey again said he didn't know whether so-called waterboarding is torture and thus illegal. "I very much regret that he couldn't have just been clear and definitive."
Most Republicans on the panel said they had decided to vote for Mukasey's confirmation. But Sen. Arlen Specter of Pennsylvania, the committee's most senior Republican, was mum on his own decision.
"I think that the extensive letter which Judge Mukasey has submitted goes about as far as he can go. He has repudiated waterboarding, he has rejected it, but he has stopped short of making a determination of legality," Specter said Wednesday during a committee meeting. He urged a closed-door session of panel members and acknowledged that Mukasey's nomination is in trouble.
"No doubt the confirmation is at risk at this moment because he has not answered the question categorically," Specter said.
Pledge to study legality
Republicans, clearly concerned, spoke on the Senate floor one after another to urge Mukasey's confirmation and accuse Democrats of playing politics with a nominee that one of their own, Schumer, suggested to the president.
Schumer, D-N.Y., has been uncharacteristically quiet on this issue, refusing to comment on Mukasey's answer on waterboarding. The camera-friendly New York senator, who drove the inquiry that pressured former Attorney General Alberto Gonzales to resign, has said that he has concerns about Mukasey's answers on torture and executive power. But Schumer has refused to comment on more than 170 pages of elaboration the nominee sent to the committee Tuesday night.
A retired federal judge, Mukasey told the committee on Tuesday that the terrorism-era interrogation method known as waterboarding is "repugnant to me," and he pledged to study its legality if confirmed.
"If, after such a review, I determine that any technique is unlawful, I will not hesitate to so advise the president and will rescind or correct any legal opinion of the Department of Justice that supports the use of the technique," he wrote to the committee's 10 Democrats.
The committee will consider Mukasey's nomination on Tuesday, Leahy said. Vote counters of both parties said Wednesday that Mukasey is still expected to be confirmed by the full Senate, although by a narrower margin than the White House expected.
"It seems that the Democrats are playing politics regarding one particular issue," Perino said. "Judge Mukasey is a judicious, independent thinker. That is what the Congress said they wanted to see in an attorney general. That's what they got."
She said it was unfair to ask Mukasey to answer a question about a classified technique when he has not had a classified briefing on the interrogation method.