[JURIST] Wire services are reporting that the US Senate Judiciary Committee voted 11-8 Tuesday in favor of the nomination of former federal judge Michael Mukasey [WH profile; JURIST news archive] to serve as the next US attorney general. Mukasey's nomination [SJC materials] now goes to the full US Senate for a final vote. Though most Democrats on the Senate Judiciary Committee voted against the nomination, Sen. Dianne Feinstein (D-CA) and Sen. Chuck Schumer (D-NY) joined Republicans on the panel in supporting the nomination [JURIST report]. Several senators on the committee, including committee Chairman Sen. Patrick Leahy (D-VT), balked at voting for Mukasey [JURIST report] over his refusal to unequivocally denounce waterboarding [JURIST news archive] as torture.

In his opening statement [text] at Tuesday's hearing [SJC materials], Leahy said:

Nothing is more fundamental to our constitutional democracy than our basic notion that no one is above the law. This Administration has undercut that precept time after time. They are now trying to do it again, with an issue as fundamental as whether the United States of America will join the ranks of those governments that approve of torture. This President and Vice President should not be allowed to violate our obligations under the Convention Against Torture and the Geneva Conventions or disregard U.S. statutes such as our Detainee Treatment Act and War Crimes Act. They should not be allowed to overturn more than 200 years of our Nation's human rights and moral leadership around the world.

The Administration has compounded its lawlessness by cloaking its policies and miscalculations under a veil of secrecy, leaving Congress, the courts, and the American people in the dark about what they are doing. The President says that we do not torture, but had his lawyers redefine torture down in secret memos, in fundamental conflict with American values and law. …

Some have sought to find comfort in Judge Mukasey's personal assurance that he would enforce a future, new law against waterboarding if this Congress were to pass one. Unsaid, of course, is the fact that any such prohibition would have to be enacted over the veto of this President.

But the real damage of this argument is not its futility. The real harm is that it presupposes that we do not already have laws and treaty obligations against waterboarding. In fact, we do. No Senator should abet this Administration's legalistic obfuscations by those such as Alberto Gonzales, John Yoo, and David Addington by agreeing that the laws on the books do not already make waterboarding illegal. We have been prosecuting water torture for more than 100 years. …

I wish that I could support Judge Mukasey's nomination. I like Michael Mukasey. But this is an Administration that has been acting outside the law and an Administration that has now created a "confirmation contortion." When many of us voted to confirm General Petreas, the Administration turned around and, for political advantage, tried to claim that when we voted to confirm the nominee, we also voted for the President's war policies. Just as I do not support this President's Iraq policy, I do not support his torture policy or his views of unaccountability or unlimited Executive power.

No one is more eager to restore strong leadership and independence to the Department of Justice than I. What we need most right now is an Attorney General who believes and understands that there must be limitations on Executive power. America needs to be certain of the bedrock principles in our laws and our values that no President and no American can be authorized to violate. Accordingly, I vote no on the President's nomination.

If Mukasey receives support from the full Senate, he will become the 81st attorney general of the United States, succeeding former US Attorney General Alberto Gonzales [JURIST news archive] whose resignation [JURIST report] took effect in September. Gonzales resigned from his post after months of controversy over the Justice Department's handling of the firings of eight US Attorneys [JURIST news archive] and subsequent allegations that he may have perjured himself [JURIST report] in testimony before Congress.