The chairman of the Senate Judiciary Committee, Patrick Leahy of Vermont, says he won't support President Bush's nominee to be attorney general.
And that could be enough to derail Mukasey's confirmation.
Democrats are concerned that the nominee hasn't taken a full enough stand against torture. He hasn't said whether he believes the practice of waterboarding amounts to torture.
Leahy thinks that's unacceptable. He says, "No American should need a classified briefing to determine whether waterboarding is torture."
Four other Democrats on Leahy's panel have already said they won't support him. The committee decides Tuesday whether to approve the confirmation.
It's presumed that all of the Republicans on the Senate Judiciary Committee will vote to send the Mukasey nomination out of committee and to the floor of the Senate for a full vote. All then that would be needed is one yes vote on the Democrat's side of the committee. It's now all up to Chuck Schumer (who recommended Mukasey as a good bipartisan choice for Attorney General to Bush) and Dianne Feinstein (two Democrats on the committee who consistently have had trouble working on behalf of the people who elected them), Russ Feingold (who said today that he was undecided, that Mukasey "may be the best nominee we can get from this administration," and "a marked improvement over former Attorney General Alberto Gonzales"), Herb Kohl and Ben Cardin.
On the issue of torture, Schumer is, himself, 'tortured':
Schumer, who has remained uncharacteristically quiet throughout the furor, said in an interview yesterday that he is now "wrestling" with whether to vote against a nomination that he was instrumental in bringing about. He compared the controversy to the 2005 nomination battle over Chief Justice John G. Roberts Jr.
"From this administration, we will never get somebody who agrees with us on issues like torture and wiretapping," Schumer said at one point, suggesting an argument in favor of Mukasey, who faces a Senate Judiciary Committee vote on Tuesday. "The best thing we can hope for is someone who will depoliticize the Justice Department and put rule of law first."
But Schumer said minutes later that his mind is not made up: "He's the best we can get, but that doesn't necessarily ensure a yes vote. I thought John Roberts was the best we could get, but I voted no."
Mukasey may not be the only one who needs to be pressed for his opinion on waterboarding as torture, or if torture has any place at all in U.S. policy and practice. A little over three years ago, Schumer was a defender of its use:
"...I'd like to interject a note of balance here. There are times when we all get in high dudgeon. We ought to be reasonable about this. I think there are probably very few people in this room or in America who would say that torture should never, ever be used, particularly if thousands of lives are at stake.
Take the hypothetical: If we knew that there was a nuclear bomb hidden in an American city and we believed that some kind of torture, fairly severe maybe, would give us a chance of finding that bomb before it went off, my guess is most Americans and most senators, maybe all, would say, "Do what you have to do."
So it's easy to sit back in the armchair and say that torture can never be used. But when you're in the foxhole, it's a very different deal.
And I respect -- I think we all respect the fact that the president's in the foxhole every day. So he can hardly be blamed for asking you or his White House counsel or the Department of Defense to figure out when it comes to torture, what the law allows and when the law allows it and what there is permission to do..."~Senator Chuck Schumer to witness Attorney General John Ashcroft at Senate Judiciary Committee hearing about the Bush administration's anti-terror policy, June 8, 2004.