Wednesday, Nov. 7, 2007 | 7:01 a.m.
Two Democrats surrendered to the inevitable on Tuesday, thus allowing attorney general nominee Michael Mukasey to survive his testimony before the Senate Judiciary Committee.
Sens. Charles Schumer of New York and Dianne Feinstein of California said it was better to confirm a flawed Mukasey than to allow President Bush to appoint an acting attorney general who would continue to put White House political priorities above strict adherence to federal law.
Neither was happy with Mukasey's refusal to say that waterboarding is torture and therefore against U.S. law and international agreements. But their ultimate vote for Mukasey was a concession to presidential power.
The retired federal judge revealed with his reticence on waterboarding's legality that he is vulnerable to White House pressure. But he also stated that waterboarding is personally "repugnant" to him and that he would enforce its ban if Congress passes a law prohibiting the CIA technique for interrogating terror suspects.
With the votes of Schumer and Feinstein, and those of the nine Republicans on the committee, Mukasey's nomination now goes to the full Senate, where he almost certainly has the votes to win confirmation.
But he will not have the support of Majority Leader Harry Reid, D-Nev., who emphatically stated Tuesday that "waterboarding is illegal under current law." Reid also said:
"After World War II, the U.S. prosecuted and convicted Japanese soldiers for engaging in this practice. Sens. John McCain, Lindsey Graham and John Warner - who have served as leaders in the U.S. Senate on this issue - recently issued a detailed legal analysis unambiguously concluding that waterboarding 'represents a clear violation of U.S. law' that Congress has repeatedly outlawed.
"Further, former and sitting judge advocates general agree that waterboarding is illegal. On Friday, in a letter to the chairman of the Judiciary Committee, several prominent former judge advocates general declared unequivocally: 'Waterboarding is inhumane, it is torture, and it is illegal ... Waterboarding detainees amounts to illegal torture in all circumstances.'
"If he (Mukasey) is confirmed, I believe he will take steps to depoliticize the Department of Justice and to help restore the integrity and credibility that was so lacking under his predecessor, Attorney General Alberto Gonzales.
"However, given our recent history, it is of crucial importance that our next att orney general be able to stand up to the president and for the rule of law. Because I am not confident that Judge Mukasey will, I will oppose his nomination."
Strong words - and we couldn't agree with them more. One purpose of confirmation hearings is to expose any weaknesses on the part of nominees. Mukasey showed he's capable of deferring to the president, even on obvious questions of law.
We agree with Reid - Mukasey has not earned the trust that must be placed in someone aspiring to become the nation's top law enforcement officer.
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