Executive Session

Floor Speech

EXECUTIVE SESSION -- (Senate - November 08, 2007)

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Mr. McCONNELL. Mr. President, I am pleased that today, 7 weeks after he was nominated, the Senate will finally vote on the confirmation of Judge Michael Mukasey to be our Nation's 81st Attorney General.

Judge Mukasey's nomination is the culmination of a process in which the President was extremely solicitous of the views of the Democratic majority. In fact, it's hard to imagine how he could have been any more bipiartisan with respect to this nominee. Just to recap:

Our Democratic friends did not want the former Attorney General to continue in office. Well, he has resigned.

Our Democratic colleagues wanted to be consulted on whom the next Attorney General should be. Well, the administration consulted extensively with them.

Our Democratic colleagues said that if the "President were to nominate a conservative like a Mike Mukasey,'' he "would get through the Senate very, very quickly.'' Well, the President did not nominate someone "like'' Mike Mukasey; he nominated Mike Mukasey himself. And the President received widespread acclaim for choosing a ``consensus'' nominee.

So it is apparent that the President acted in a very bipartisan fashion. Did our Democratic friends reciprocate? Let's review the record:

First, they held up the nomination for weeks before even scheduling a hearing, a failure to act which the Washington Post termed
"irresponsible.''

Then, despite the fact that Judge Mukasey testified for 2 days and answered over 250 questions, our Democratic colleagues asked him an additional 500 written questions. By contrast, Attorney General Reno did not receive any written questions until after she was confirmed.

Then it took our Democratic colleagues over 2 weeks to schedule a markup. Again, by contrast, the Judiciary Committee marked-up Attorney General Reno's nomination on the very same day it finished her hearings.

By the time the Mukasey nomination was marked-up, this ``consensus'' nominee had somehow become ``controversial.'' How did this happen? The answer is that Judge Mukasey fell victim to the politicization of the confirmation process, just like another recent nominee who suddenly became ``controversial.''

Both Leslie Southwick and Michael Mukasey were nominated because they were consensus candidates:

Judge Southwick previously had been unanimously approved by Democrats on the Judiciary Committee.

And Judge Mukasey had been repeatedly recommended by a Democratic member of that committee, not just for a 15-month stint as Attorney General but even for a lifetime position on the Supreme Court.

Judge Southwick was suddenly deemed controversial because of two opinions out of 7,000. He didn't write either of them and at any rate, both opinions existed when the Judiciary Committee earlier approved him to another lifetime Federal judgeship.

And Judge Mukasey suddenly became controversial because of one question out of the 750 oral and written questions he was asked. That one question was whether waterboarding terrorist killers legally constitutes torture in all applications, regardless of circumstances and regardless of how many American lives might hang in the balance.

Well-known members of the vast Right Wing Conspiracy, like Professor Alan Dershowitz of Harvard Law School and Stuart Taylor of National Journal, say the answer to that question is no. But Judge Mukasey didn't say anything even close to that. He was far more reserved.

Rather, Judge Mukasey promised to bring his trademark thoughtfulness to bear in answering this question, and swore that he would rather resign than countenance any illegality. In doing so, Judge Mukasey answered the question the way his Chief Recommender, our friend, the senior Senator of New York, said it ought to be answered, namely, ``carefully.''

Specifically, in 2004, Senator Schumer implored us to be ``reasonable'' and not get into ``high dudgeon'' about the issue of torture. He noted:

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.

Our friend from New York noted that it is easy to ``sit back in the armchair'', as he put it, and demagogue the issue. But ``when you're in the foxhole,'' as he described it, ``it's a very different deal.''

Senator Schumer said he respected ``the fact that the President is in the foxhole every day. So he can hardly be blamed for asking'' his Attorney General or his White House counsel or the Defense Department ``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.'' But, our friend from New York correctly cautioned, the legal analysis has ``to be done carefully.''

Judge Mukasey applied just such a careful analysis to this legal question. And an important part of carefulness, of course, is not to prejudge the legality of an intelligence program that one is not read into, and that concerns interrogation techniques that, even if used, are classified.

But despite the fact that Judge Mukasey answered the question in the same thoughtful manner that our friend from New York noted it demands, and despite the fact that Judge Mukasey was much more reserved in his pronouncements than Professor Dershowitz, this once-consensus candidate is now controversial. If my Democrat colleagues vote against Judge Mukasey because of his comments on waterboarding, it must mean they also would vote against Professor Dershowitz and Senator Schumer if they were nominated for Attorney General.

I have a hard time believing that my Democratic colleagues would vote against Professor Dershowitz's nomination to be Attorney General. And I have an even harder time believing that our colleagues would vote against Senator Schumer if he were nominated to this position.

In conclusion it should not have taken nearly this long to process Judge Mukasey's nomination. I am glad that tonight, almost 2 months after he was nominated, the waiting will finally end, and that Judge Mukasey will soon get to work at the Justice Department, the thing our Democratic colleagues said they wanted all along.

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