In the end, Mukasey was confirmed by a 53-to-40 vote. Six Democrats and one independent joined Republicans in sealing his confirmation.
The choice, according to one of those Democrats, was essentially between "whether to confirm Michael Mukasey as the next attorney general or whether to leave the Department of Justice without a real leader for the next 14 months," said Senator Dianne Feinstein of California.
"This is the only chance we have," she said, referring to Bush's threat to appoint an acting attorney general not subject to Senate confirmation.
But members of her own party didn't agree. Mukasey, his opponents argued, refused to say whether waterboarding is torture and put the onus on Congress to pass a law against the practice.
"This is like saying when somebody murders somebody with a baseball bat and you say, 'We had a law against murder but we never mentioned baseball bats,' " said Patrick J. Leahy, Democrat of Vermont and chairman of the Senate Judiciary Committee. "Murder is murder. Torture is torture."
Being better than Gonzales or an acting attorney general is not enough qualification for the job, said Senator Edward M. Kennedy, Democrat of Massachusetts. Kennedy and fellow Bay State Senator John F. Kerry voted no.
"The next attorney general must restore confidence in the rule of law," Kennedy said. "We cannot afford to take the judgment of an attorney general who either does not know torture when he sees it or is willing to look the other way."
The confirmation vote capped 10 months of scandal and resignations at the Justice Department. Mukasey's chief Democratic patron, Senator Chuck Schumer of New York, drove the probe into the purge of nine federal prosecutors that helped push Gonzales out.
Yesterday's debate occurred after a tense day of negotiations that at one point featured the majority leader, Harry Reid of Nevada, threatening to postpone Mukasey's confirmation until December. His confirmation had long been a certainty despite the debate over waterboarding.
Waterboarding, used by interrogators to make the interrogated feel as if they are going to drown, is banned by domestic law and international treaties. But US law applies to Pentagon personnel, not the CIA. The administration won't say whether it has allowed the agency's employees to use it against terror detainees.
Mukasey has called waterboarding personally "repugnant," and in a letter to senators said he did not know enough about how it has been used to define it as torture.
Not voting last night were Democratic presidential candidates Joseph R. Biden Jr. of Delaware, Hillary Clinton of New York, Chris Dodd of Connecticut, and Barack Obama of Illinois. All four said they opposed the nomination.
Republican presidential candidate John McCain of Arizona also was absent.
