The Senate Judiciary Committee is expected to vote in favor of Judge Michael Mukasey as the next attorney general Tuesday, and the full Senate could confirm Mukasey by the end of the week.
Mukasey's nomination seemed in jeopardy briefly when Senate Democrats and some Republicans raised questions about the nominee's refusal to condemn the interrogation practice known as waterboarding. They also criticized Mukasey's expansive view of executive power.
Indeed, all of the Democratic senators running for president said they will vote against Mukasey and several of the Democrats on the Judiciary Committee plan to do so, as well. But two key Democrats and all of the committee's Republicans will vote in his favor, making his confirmation virtually guaranteed.
Expressing Support in the Senate
Mukasey's key Democratic supporters on the committee are Sen. Charles Schumer of New York and Dianne Feinstein of California.
Schumer was one of Mukasey's earliest supporters, having recommended him for attorney general. Schumer said Friday that he received assurances from Mukasey that if Congress passes a law banning waterboarding, "the president would have absolutely no legal authority to ignore such a law."
Feinstein called Mukasey "the best we will get" and said she will vote for him because "the Justice Department is in desperate need of effective leadership."
Resistance from some moderate Republicans evaporated in the past week, as well. The Judiciary Committee's top Republican, Arlen Specter of Pennsylvania, said he'll support Mukasey even though "he could have said a lot of things which would have given me more assurances."
And Republican Sen. John McCain of Arizona, who was waterboarded as a prisoner of war in Vietnam, said he expects Mukasey to state as soon as he is confirmed that waterboarding is torture and illegal. During the confirmation process, Mukasey would go no further than to call waterboarding "personally repugnant."
'Rebooting' the Department of Justice
One of Mukasey's first tasks as attorney general will be to replace the senior Justice Department officials who left during the scandals of the past year. Georgetown Law Professor Viet Dinh, who worked in the Justice Department during President Bush's first term, called the process "the control-alt-delete of the Department of Justice — to reboot the Department of Justice."
With only a year left in the Bush administration, Mukasey will have to move quickly. Washington attorney Joshua Berman, who used to argue cases as a prosecutor before Mukasey in New York, says, "He's got to come in not taking 100 days to figure out what he's going to do, but come in knowing that he has 20 days to start making changes."
Former Justice officials say Mukasey can take several steps quickly to reverse some of the damage caused by the U.S. attorney dismissals and accusations of politicization.
Philip Heymann, who served as deputy attorney general during the Clinton administration, expects Mukasey to shut down communications between career prosecutors and political figures at the White House.
And, Heymann says, Mukasey should announce "that hiring is going to be on a totally nonpartisan basis."
Lingering Issues for Mukasey
Still, the issues that hindered Mukasey during the confirmation process are not likely to disappear. Former Navy lawyer Hardy Vieux says Mukasey will have to revisit the subject of waterboarding as attorney general.
"The politics of it calls for insight," Vieux says, "but more importantly, the law and the practitioners need that from the attorney general and the Justice Department."
At his confirmation hearings, Mukasey claimed ignorance on the subject of waterboarding. He said he doesn't have the clearance for briefings on the Bush administration's classified interrogation programs. Once he's confirmed, he'll receive briefings, and then Senate Democrats will undoubtedly raise the same questions again at Mukasey's first Justice Department oversight hearing as attorney general.
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