Democratic Senators Charles Schumer of New York and Dianne Feinstein of California said Friday they will vote for Attorney General-nominee Michael Mukasey, which likely gives President Bush's choice enough support to pass the Senate Judiciary Committee.
Schumer and Feinstein announced their decision shortly after the chairman of the committee, Vermong Democrat Patrick Leahy, announced he would vote against Mukasey, a former federal judge.
"This is an extremely difficult decision," Schumer said in a statement, adding that Mukasey "is not my ideal choice."
In announcing her support for Mukasey, Feinstein said "first and foremost, Michael Mukasey is not Alberto Gonzales," referring to the former attorney general who resigned in September after months of questions about his honesty.
Including Leahy, five of the Judiciary Committee's 10 Democrats had said they would vote against Mukasey's confirmation after the nominee refused earlier in the week to say that waterboarding, an interrogation technique that simulates drowning, constitutes torture and therefore illegal.
But with nine Republicans on the panel, Schumer's and Feinstein's support for Mukasey virtually guarantees that a majority of the committee will recommend his confirmation when it votes next Tuesday.
Leaders in both parties have said they expect Mukasey to get at least 70 votes when the full 100-member Senate votes on his confirmation. But Majority Leader Harry Reid, D-Nev., had said he would not bring it up for a vote without Judiciary Committee action first.
Schumer's announcement followed a private meeting Friday with Mukasey to discuss waterboarding.
"I deeply oppose it," Schumer said of waterboarding. "Unfortunately, this nominee, indeed any proposed by President Bush, will not agree with this. I am, however, confident that this nominee would enforce a law that bans waterboarding."
Schumer, who was Mukasey's chief Democratic sponsor, said the retired judge told him that if Congress passes a law banning waterboarding, "the president would have absolutely no legal authority to ignore such a law." Schumer said Mukasey said he would enforce any congressional ban the controversial interrogation method.
Schumer and Feinstein made their announcements just hours after Leahy said he wouldn't support Mukasey.
"No American should need a classified briefing to determine whether waterboarding is torture," he said in an afternoon news conference in Burlington.
Once viewed as a sure thing, Mukasey's nomination was threatened during hearings last month in which he repeatedly refused to say whether he considers the simulated drowning interrogation technique known as waterboarding to be a form of torture.
Torture is considered a war crime by the international community and waterboarding has been banned by the U.S. military, but CIA interrogators are believed to have used the technique on terror detainees as recently as a few years ago.
Mukasey has called waterboarding personally "repugnant," but said he did not know enough about how it has been used to define it as torture. He also said he thought it would be irresponsible to discuss it since doing so could make interrogators and other government officials vulnerable to lawsuits.
"I am eager to restore strong leadership and independence to the Department of Justice," said Leahy. "I like Michael Mukasey. I wish that I could support his nomination. But I cannot. America needs to be certain and confident of the bedrock principle— deeply embedded in our laws and our values — that no one, not even the president, is above the law."
Mukasey, a retired federal judge, was nominated in September to replace former Attorney General Alberto Gonzales, who resigned after months of questions about his honesty in congressional testimony and whether he allowed the Justice Department to become too entwined in White House politics.
The Democrats who sit on the Judiciary Committee and have said they will oppose Mukasey are: Leahy, Joe Biden of Delaware, Edward M. Kennedy of Massachusetts, Richard Durbin of Illinois and Sheldon Whitehouse of Rhode Island.
Schumer and Feinstein say they will vote for Mukasey, and Deomcrats Herb Kohl and Russell Feingold of Wisconsin and Benjamin Cardin of Maryland have not yet announced their plans.