by James Oliphant

In his bid to be the number-two official at the Justice Department, Chicago federal judge Mark Filip Wednesday ran afoul of the same tripwire that almost did in his putative boss, Michael Mukasey.

Filip refused repeatedly to declare the interrogation practice known as waterboarding illegal, despite the urgings of several senators. While his hesitation is unlikely to jeopardize his nomination to be the deputy attorney general, it again underscored the level of tension between Congress and the Justice Department over the issue of torture.

At his confirmation hearing in November, Mukasey’s reluctance to brand waterboarding as torture almost derailed his nomination and led to the narrowest vote to confirm an attorney general in history. Mukasey, like Filip a federal judge, said that he couldn’t render a legal opinion without being privy to administration materials on the practice.

Filip did label waterboarding “repugnant” and was, at least, able to avail himself of an argument that Mukasey couldn’t: namely that he didn’t want render an opinion on an issue that Mukasey, his potential superior, was still studying.

None of it was good enough for Sen. Edward Kennedy (D-Mass.). “Repugnant is not the answer that meets the requirements in terms of the various statutes,” Kennedy said.

And Sen. Dick Durbin (D-Ill.), who as Filip’s home-state senator earlier praised his qualifications, said Filip’s answers presented him with a “moral dilemma.” He professed exasperation at not being able to get a legal opinion on waterboarding from either Mukasey or his hand-picked deputy, Filip.

“Do you understand the problem that creates on this side of the table?” Durbin asked Filip.

“I would ask respectfully that you look at my record” as a federal judge and prosecutor, Filip responded.

Filip and several members of the Senate Judiciary Committee also disagreed over Congress’ role in investigating the Central Intelligence Agency’s destruction of videotaped interrogations of two suspected terrorists. Mukasey angered senators last week when he sent a letter to the committee saying that he would not respond to their requests for information on the matter.

Sen. Arlen Specter (R-Pa.), the panel’s ranking member, pushed Filip to agree that Congress had broad authority to launch investigations even as the Justice Department conducted its own. But Filip would not say that the department should defer to Congress. “I would hope, senator, not to have to pick between the two,” Filip said.

Senator Sheldon Whitehouse (D-R.I.) pressed Filip on the department’s independence from the president. Whitehouse cited a recently de-classified Justice Department memo written during the current administration that stated as a legal principle that the “Department of Justice is bound by the president’s legal determinations.”

“I think it’s the job of the Department of Justice to tell the president what the law is, not vice-versa,” Whitehouse said.

Filip, 41, was nominated by the White House last month to fill the deputy attorney general post after Paul McNulty resigned in the wake of the controversy over the firings of eight U.S. attorneys by then-Atty. Gen. General Alberto Gonzales. McNulty’s departure was part of a wave of resignations that left as many as 10 high-level posts at the department vacant.

Concerns over a lack of leadership at the department led Judiciary chair Patrick Leahy (D-Vt.) to suggest that Filip fill the deputy job on an acting basis until the Senate votes on whether to confirm him, which likely won’t take place until after the long holiday recess. But Sen. Orrin Hatch (R-Utah) noted that Filip would be unlikely to surrender the security of a lifetime appointment to the federal bench for such a tenuous position and urged the Senate simply to confirm Filip immediately. Filip stayed silent on the issue.

Filip, a Chicago native and Wilmette resident, was a longtime federal prosecutor before joining the law firm of Skadden, Arps, Slate, Meagher & Flom in Chicago. He was nominated to the bench by President Bush in 2004 and was confirmed unanimously by the Senate. Wednesday, he spoke repeatedly about his affection for institution he would be joining. “I became a lawyer in Chicago because I hoped to join the Department of Justice,” he said. “To be here to be considered for the position of deputy attorney general is truly humbling.”

He was joined by his wife, Beth, and his four young sons, all of whom were decked out in matching blue blazers, blue oxford shirts and khaki pants. More than one senator noted that Filip’s greatest achievement might have been keeping the boys still for the entire two-hour hearing.