Washington, D.C. ? The top Republican on the Senate Judiciary Committee said Sunday he is bothered by Michael Mukasey’s refusal to say whether waterboarding is torture but will support his nomination for attorney general anyway.

Sen. Arlen Specter, R-Pa., joins two key Senate Democrats in saying he will back Mukasey because the retired judge has said that if Congress passes a law banning waterboarding, “the president would have absolutely no legal authority to ignore such a law.”

“He could have said a lot of things which would have given me more assurances,” Specter said. “But he is intelligent; he’s really learned in the law. He’s strong, ethical, honest beyond any question. He’s not an intimate of the president.”

“And you have to balance it off with where we are today,” said Specter, R-Pa. “The Department of Justice is dysfunctional. It is not performing. And every day that passes, we do not have someone in charge of the investigation against terrorism, the fight against violent crime.”

The Senate Judiciary Committee is set to vote on Mukasey’s nomination Tuesday.