Bush: There may be no attorney general if Mukasey nomination fails

WASHINGTON -- President Bush sought to save Michael Mukasey's troubled nomination for attorney general Thursday, defending the retired judge's refusal to say whether he considers waterboarding torture and warning of a leaderless Justice Department if Democrats do not confirm him.

"If the Senate Judiciary Committee were to block Judge Mukasey on these grounds, they would set a new standard for confirmation that could not be met by any responsible nominee for attorney general," Bush said in a speech at the Heritage Foundation, a conservative think tank.

"That would guarantee that America would have no attorney general during this time of war," the president said.

Bush also framed Mukasey's nomination with the familiar theme of national security.

"A key member of the team that works to protect the American people is the attorney general," the president said earlier Thursday during an unusual session in the Oval Office. "It's important for Congress to pass laws and/or confirm nominees that will enable this government to more effectively defend the country and pursue terrorists and radicals that would like to do us harm."

The comments raised questions about whether Bush would nominate anyone else to succeed Alberto Gonzales as the nation's top law enforcer. Bush could bypass Congress by filling the job with someone serving in an acting capacity or appointing someone while lawmakers are in recess to serve out the last 14 months of his administration.

Asked whether Bush was saying he would not nominate anyone if Mukasey were to be rejected, White House spokeswoman Dana Perino said, "We don't believe it would come to that. No nominee could meet the test they've presented."

There is a way for Mukasey to get a full Senate vote even if committee Democrats are unified in opposing him. The committee could agree to advance the nomination with "no recommendation," allowing Mukasey the chance to be confirmed by a majority of the 100-member Senate. Several vote-counters in each party said Mukasey probably would get 70 "yes" votes.

Despite that prospect, more Senate Democrats announced their opposition to Mukasey. Most cited his refusal to say whether waterboarding, an interrogation technique that uses the threat of drowning to elicit answers, amounts to torture and thus is illegal under constitutional, domestic and international law.

The Senate Judiciary Committee plans a test vote Tuesday on the nomination. Sen. Edward Kennedy, D-Mass., became the fourth of 10 Democrats on the 19-member committee to say he will vote against advancing the nomination to the full Senate.

Kennedy said Mukasey's unwillingness to give a definitive answer on the torture question increased the chances that the technique could be used against U.S. troops.

"I therefore intend to oppose this nomination," Kennedy said in the full Senate. "Judge Mukasey appears to be a careful, conscientious and intelligent lawyer and he has served our country honorably for many years. But those qualities are not enough for this critical position at this critical time."

Democratic Sens. Joe Biden of Delaware, Sheldon Whitehouse of Rhode Island and Dick Durbin of Illinois said this week they will vote "no" in committee. Assuming that all nine of the Republicans on the committee vote for Mukasey, only one Democrat would have to side with the president for the nomination to move to the full Senate with a favorable recommendation.

So far, the other Democrats on the committee have declined to announce their positions. That includes Mukasey's chief Democratic sponsor, Sen. Chuck Schumer, D-N.Y.

Majority Leader Harry Reid, D-Nev., told reporters he could not guarantee a full Senate vote if the nomination fails in committee.

"I really believe in the committee process," said Reid, who has not said how he would vote. "If I'm asked by members of the committee to stay out of the fray, I am willing to do that."

Two Republicans who were troubled by Mukasey's initial answers said they would vote for him in the full Senate.

But in a letter to Mukasey, GOP Sens. John McCain of Arizona and Lindsey Graham of South Carolina urged the nominee never to let waterboarding be used if he were to become attorney general.

Still, signs abounded that Mukasey's nomination was in trouble. Sen. John Kerry, D-Mass., who is not on the Judiciary Committee, declared his opposition.

In the Oval Office, Bush complained about the holdup and said it was unfair to ask Mukasey about interrogation techniques about which he has not been briefed. "He doesn't know whether we use that technique or not," the president said during the session.

Further, Bush said, "It doesn't make any sense to tell an enemy what we're doing."

Bush urged swift approval of Mukasey, saying the U.S. needs an attorney general on the job to help with the fight against terrorism.

Without saying whether interrogators use waterboarding, Bush said, "The American people must know that whatever techniques we use are within the law."

Asked whether he considers waterboarding legal, Bush replied, "I'm not going to talk about techniques. There's an enemy out there."

For the fourth day in a row, no comment on a Mukasey vote was forthcoming from Schumer, the media-savvy lawmaker who led the probe that pressured Gonzales to quit and who suggested Mukasey as his replacement.