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Senate Narrowly Confirms Mukasey as Attorney General

The Senate reluctantly confirmed the nomination of Michael B. Mukasey to become the 81st attorney general late Thursday night despite widespread displeasure over his answers about the constitutionality of a brutal interrogation tactic used on terrorism suspects.

The 53 to 40 vote to confirm President Bush's choice to replace Alberto Gonzales was the closest vote in more than 50 years for someone confirmed to be the nation's top law enforcement officer. Republicans and some Democrats argued that Mukasey was the best nominee lawmakers could hope for in the waning months of the Bush administration, and that it was unlikely the president would send up another nomination if Mukasey were rejected.

After initially being trumpeted on both sides of the aisle as a "consensus nominee", the retired New York federal judge received just six votes from Democrats and one from independent Joseph Lieberman (Conn.) while he was unanimously supported by the 46 Republicans on hand for the late-night vote.

The debate turned on the now-familiar themes of Mukasey's views on an interrogation technique known as waterboarding, something he called "repugnant" but declined to declare as unconstitutional torture because he said he hadn't been briefed on the administration's interrogation practices.

"Torture should not be what America stands for," said Judiciary Committee Chairman Patrick J. Leahy (D-Vt.), who once predicted an easy confirmation but was startled by the nominee's answers in his second day of confirmation hearings last month.

Last night's vote came three weeks after that Oct. 18 hearing, a roller-coaster ride in which Mukasey's nomination came close to being rejected in committee. The four-hour debate turned largely into an internal argument among Democrats, as Republicans ceded large chunks of their floor time to the few members of the majority who supported Mukasey.

Sens. Charles Schumer (D-N.Y.) and Dianne Feinstein (D-Calif.), whose votes were instrumental in Mukasey's nomination surviving the Judiciary Committee's review earlier this week, both argued that the nominee's views on torture were inexcusable but otherwise praised him as someone who would clean up a Justice Department widely viewed as overly politicized under Gonzale's nearly three-year tenure.

"Politics has been allowed to infect all manner of decision-making (at Justice). Now, we are on the brink of a reversal," Schumer said. While he called Mukasey "dead wrong" on waterboarding, he predicted a defeated nomination would lead to Bush leaving in place an acting attorney general who would not be able to overrule Vice President Cheney or his top aide David Addington on controversial anti-terror practices.

"It would be the Cheney-Addington wing running the Justice Department on security matters," Schumer said.

"No one has explained why more of the same at the Justice Department would be better than putting Judge Mukasey in charge," Feinstein said.

But Sen. Edward M. Kennedy (D-Mass.) said his answers on torture signaled that Mukasey already lacks independence from those powerful forces inside the White House, leaving the Justice Department under the political and legal thumb of Bush's top aides. "Only an attorney general who's not afraid to speak truth to power can be such a leader," Kennedy said.

The debate and vote followed 10 months of upheaval, scandal and widespread resignations at the Justice Department, capped by the resignation of Gonzales in September. Gonzales was widely criticized for politicizing the Justice Department and allowing the firings of U.S. attorneys who weren't considered to be team players by the White House or Republican members of Congress.

All five Senate members running for president -- Joseph Biden (D-Del.), Hillary Rodham Clinton (D-N.Y.), Christopher Dodd (D-Conn.), John McCain (R-Ariz.) and Barack Obama (D-Ill.) --missed the vote while campaigning. All four Democratic contenders announced their opposition to the nominee.

Mukasey takes over the Justice Department with the lowest mandate of Senate support dating back at least since the Eisenhower administration, according to research by Washington Post researcher Madonna Lebling. Here's how his 53 to 40 vote stacks up against the confirmation votes of attorneys general dating back to the Reagan administration:

Alberto R. Gonzales (R): 60-36
John Ashcroft (R): 58-42
Janet Reno (D): 98-0
Richard Thornburgh (R): 85-0
Edwin Meese (R): 63-31
William French Smith (R): 96-1

By Eric Pianin  |  November 8, 2007; 11:36 PM ET
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