Leahy: “No Justification” For Failure To Act On Cole Nomination

The Senate is expected to vote on the motion to invoke cloture on the nomination of James Cole to be the Deputy Attorney General of the United States around 5:30 p.m. this evening.


Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee
On Cloture On The Nomination Of Jim Cole To Be Deputy Attorney General

May 9, 2011

As Prepared For Delivery

The Majority Leader has been required to file cloture in an attempt to overcome a Republican filibuster of the nomination of Jim Cole to be Deputy Attorney General, a key national security position and the number two position at the Department of Justice.  The Senate has never before filibustered a President’s nomination to be Deputy Attorney General.   Mr. Cole’s nomination to fill this critical national security position was blocked last year, when it was pending on the Senate’s Executive Calendar for 155 days after it was reported favorably by the Judiciary Committee.  The nomination was reported favorably by the Judiciary Committee again in March, and incredibly, it is again being filibustered.

It is hard to believe that one week after the successful operation that killed Osama bin Laden, the world’s number one terrorist, we cannot take this step to ensure that President Obama has his full national security team in place.  Now that a measure of justice has been secured for the victims of September 11, I have expressed hope that we can come together as we did in the weeks and months following September 11.  We should be ensuring that we are extra vigilant these days.  There are widespread reports that experts are concerned about this being a time in which al Qaeda will seek reprisals.  Most Americans believe we should be concerned about them trying to strike back.  This is not a time for further delay or obstruction.  Let us join together and confirm this qualified nominee.

This weekend, The Washington Post editorial board called this delay “ridiculous”, referring to the Deputy Attorney General as “essentially the chief operating officer of the Justice Department, including its national security operations.”  This delay is ridiculous and dangerous, and I hope other Senators will see it as such and help end it.

We have the opportunity now to set aside partisanship and come together to work with our President to keep America safe.  I recall in the aftermath of 9/11 we took immediate steps to do what we could to make sure the President’s entire law enforcement team was in place.  We expedited the nominations of 14 United States Attorneys that had been received in the Senate only one week before, reporting them from the Judiciary Committee on September 13 and confirming them by voice vote the very next day.  Those nominations included the nomination of Paul McNulty to the Eastern District of Virginia, one of the key districts where terrorism defendants like Zacarias Moussaoui, one of the conspirators in the 9/11 attacks, are tried.  We continued to expedite nominations in the weeks and months that followed, confirming an additional 58 officials to posts at the Justice Department in those weeks and before the end of 2001.

Last week at the Judiciary Committee’s oversight hearing on the Department of Justice, the Attorney General of the United States reiterated the need for final Senate action on the nomination of the Deputy Attorney General. He urged the Senate to confirm Jim Cole to help the Department fulfill all of its critical tasks, including protecting national security, in a time of heightened concern about retaliatory attacks stemming from Osama bin Laden’s death.  Yet, rather than take action to end the unnecessary and unexplained delays and finally confirm the nomination of Jim Cole, the unprecedented Republican filibuster continues.  This is wrong.  It should end.

I hope that Senators on the other side of the aisle will listen to former Deputy Attorneys General of the United States who served in both Republican and Democratic administrations.  Last December, they wrote to the leaders of the Senate and urged the Senate to consider Mr. Cole’s nomination without delay.  These former officials who served with distinction in that post wrote that the Deputy is “the chief operating officer of the Department of Justice, supervising its day-to-day operations” and that “the Deputy is also a key member of the president’s national security team, a function that has grown in importance and complexity in the years since the terror attacks of September 11.”  They were right and their advice rings true today. 

As the former Deputies, three of whom served under President George W. Bush, noted in their letter, “Because of the responsibilities of the position of Deputy Attorney General, votes on nomination for this position usually proceed quickly.”    I wish the Senate had heeded their advice and voted to confirm Mr. Cole last year.  Now another five months have passed.

When we first reported Jim Cole’s nomination last July, I said that I hoped the Senate would treat his nomination to this critical national security and law enforcement position with the same urgency and seriousness with which we treated all four of the Deputy Attorneys General who served under President Bush.   All four were confirmed by the Senate by voice vote an average of 21 days after they were reported by the Judiciary Committee.   In fact, we confirmed President Bush’s first nomination to be Deputy Attorney General the day it was reported by the Committee.  That is not the treatment that Deputy Attorney General Cole has received.  

The Senate’s treatment of the Cole nomination represents a sharp break from the Senate’s long-standing practice of deference to the administration and timely consideration of critical national security and law enforcement nominations.  In their letter last December, the eight former Deputy Attorneys General noted that, of the 11 nominations to fill this position over the last 20 years from Democratic and Republican presidents, “none remained pending for longer than thirty-two days.”  Jim Cole’s nomination has been pending on the floor for 222 days combined, nearly seven times longer than any nominee in the last 20 years.  In fact, dating back to 1981, 15 of the 16 Deputy Attorney General nominations pending on the Executive Calendar were confirmed unanimously, the only exception being President Obama’s first Deputy Attorney General nomination, of David Ogden, which was confirmed 65-28 after cloture was filed and a time agreement was reached.  All of the nominees of Presidents Reagan, George H.W. Bush, Clinton and George Bush were confirmed unanimously by the Senate, in an average of less than two weeks.

Last December, after the nomination had already been delayed for over four months without explanation, I came to the floor and asked unanimous consent that at a time to be determined by the Majority and Minority leaders, the Senate consent to a time agreement for a debate and vote on the Cole nomination.   Republicans objected to that request in December and have still, five months later, refused to agree to a time to debate and vote on the nomination.  It is time finally for the Senate to vote.

Jim Cole’s nomination was pending last year for five months while Republican Senators objected time and time again to calling it up for a vote.   I believe that Mr. Cole would have been confirmed by the Senate had his nomination been given an up-or-down vote.  I believe he should be confirmed. As it was, after the Senate did not take final action on the nomination, President Obama exercised his authority after the Senate had recessed for the year to appoint him in order to make sure this critical national security and law enforcement post was filled.  The President promptly renominated him when Congress returned this year.  Recess appointments have not prevented Republican Senators from voting to confirm nominations by Republican Presidents.  Given the history of obstruction of this nomination, it is time for the Senate to vote.

This is not a nomination that should have been controversial.  It is a nomination supported by former Republican Senator Jack Danforth, who worked with Jim Cole for more than 15 years.  When he introduced Mr. Cole at his confirmation hearing, Senator Danforth described Mr. Cole as someone without an ideological or political agenda.  He also wrote to the Committee that “Jim is a ‘lawyer’s lawyer.’  He is exceedingly knowledgeable, especially on matters relating to legal and business ethics, public integrity and compliance with government regulations.  He is highly regarded [] as a skillful litigator.  As his resume demonstrates, he has a long and deep experience in the Department of Justice.”  I agree.  Jim Cole served as a career prosecutor at the Justice Department for a dozen years and has a well-deserved reputation for fairness, integrity and toughness.  He has demonstrated that he understands the issues of crime and national security that are at the center of the Deputy Attorney General’s job.  Nothing suggests that he will be anything other than a steadfast defender of America’s safety.

We have received numerous letters of support for the nomination of Jim Cole to be Deputy Attorney General, including letters from many former Republican public officials.   I ask unanimous consent that these three letters be included in the Record at the conclusion of my remarks.

Among these is a letter from Michael Toner, former Chief Counsel of the Republican National Committee and former General Counsel to the Bush-Cheney 2000 Campaign, who wrote “[i]n light of his extensive experience, legal acumen, professionalism and integrity, I can think of no better person than Mr. Cole to serve as Deputy Attorney General.” 

Chuck Rosenberg, former Chief of Staff for Deputy Attorney General James Comey, who served under President George W. Bush, wrote, “I know how important it is for this crucial position to be filled by the right person. Jim is the right person. He is smart, experienced, thoughtful and has the proper skills and temperament to help Attorney General Eric Holder lead the Justice Department.”

In his letter recommending Mr. Cole, Michael J. Madigan, a Republican counsel on many high-level Senate investigations, described Mr. Cole as “one of those somewhat rare individuals in this city about whom you will never hear even the mildest of criticism.”  He concluded that Mr. Cole “is a good man and perfectly suited for the challenging position for which the President has wisely nominated him.”

Mr. Cole’s critics have been wrong to try to blame him for the actions of AIG.  His limited role was as an outside monitor of other corporate functions and there is no evidence showing he did not perform his assignment well.  Let us hold those responsible at AIG accountable.  Not a single person at AIG has been.  There is no basis for making Mr. Cole the scapegoat for the action of AIG.  Blame the AIG agents and employees, blame its officers, blame its board, or even criticize the lack of oversight by state and Federal regulators and law enforcement officials if you like. But scapegoating this good man is wrong.   As The Washington Post observed in an editorial last year when Mr. Cole’s nomination was being blocked on the Senate floor, “There is no suggestion that Mr. Cole suffers from the kind of ethical or legal problems that would disqualify a nominee.” 

There is no justification for the failure to act on this critical national security nomination, and for failing to make sure that the administration has its full national security team in place.  I hope that the Senate will reject this destructive and unprecedented filibuster so that we can finally consider and confirm Jim Cole after many months of unnecessary delays.

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