WASHINGTON - President Bush sought to save Michael Mukasey's troubled nomination for attorney general yesterday, 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 told reporters earlier yesterday in the Oval Office.
The comments raised questions about whether Bush would nominate anyone else to succeed Alberto R. Gonzales as the nation's top law enforcer. Bush could bypass Congress by filling the job with someone serving in an acting capacity or by 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 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 united in opposing him. The Senate Judiciary 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 have announced their opposition to Mukasey. Most cited his refusal to say whether waterboarding, an interrogation technique that uses the threat of drowning, amounts to torture and thus is illegal under constitutional, domestic, and international law.
The Judiciary Committee plans a test vote today on the nomination. Senator Edward M. Kennedy, Democrat of Massachusetts, yesterday 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 US 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 Senators Joseph R. Biden Jr. of Delaware, Sheldon Whitehouse of Rhode Island, and Richard J. Durbin of Illinois said this week they will vote no in committee.