The debate over the confirmation of Judge Michael Mukasey as the next attorney general of the United States is now over and his appointment seems assured. His confirmation hearings were, however, in my opinion, quite odd. He came before the Senate an odds-on favorite to gain easy confirmation, particularly given his close relationship to Sen. Charles Schumer of New York. Yet, within days, Judge Mukasey found himself at the center of a political tempest over his refusal to state categorically that the interrogation technique known as “waterboarding” was torture and, thus, illegal.

To begin with, there can be little question that most countries do consider the technique to be torture and consider its use a violation of international law. In fact, the American military does not, so far as is known, use the technique, precisely for this reason. It is hard to believe that Judge Mukasey is unaware of this or that he needs to study the law further to make such a determination.

On the other hand, it seems equally certain that our intelligence services have used this technique since 2001 and, indeed, may continue to do so. I think that most Americans find this disturbing. In spite of popular feeling, however, it also seems clear that the use of water boarding has been approved at the highest levels in government.

What this all boils down to is that the Senate Judiciary Committee was asking Judge Mukasey to declare in public that members of the administration and of the American intelligence community had used torture illegally. If he had agreed to make such statement, then he would have left himself open to a future obligation to prosecute these crimes when he became attorney general.

To ask a nominee to do this is tantamount to asking him to promise that he will prosecute the high level government officials who has nominated him. To expect this of a nominee is politically and pragmatically naive. I find it hard to believe that the senators on the Judiciary Committee didn’t understand this.

To my mind, the most important fact about Judge Mukasey is that he appears to be someone who can restore morale in the Justice Department and has the ability to restore, as well, the credibility of Justice Department actions to the public. Although he was not willing to commit political suicide before the Judiciary Committee by answering their question on waterboarding, all of his other responses were precisely those that both Democrats and Republicans wanted to hear from the nominee.

In a political situation where you have an administration as adverse to the congressional majority as exists today, the reality is that Judge Mukasey is very likely the best nominee for attorney general one can get. I think that’s precisely why Sens. Feinstein and Schumer, two strong opponents of torture and most of the president’s policies, are supporting Judge Mukasey. And I think that their decision is the right one for the country.