Statement Of Senator Patrick Leahy, Chairman, Senate Judiciary Committee, On Executive Nominations

Today, the Senate confirmed five more executive nominations that were reported by the Judiciary Committee, including the nomination of Greg Garre to be Solicitor General of the United States, one of the highest and most prestigious positions at the Department of Justice.


The nominations that consider today also include Jeffrey Leigh Sedgwick to run the Department’s Office of Justice Programs, George W. Venables to be United States Marshal for the Southern District of California, Brian Albritton to be United States Attorney for the Middle District of Florida, and another that I have agreed to discharge from Committee: Dennis Michael Klein to be United States Marshal for the Eastern District of Kentucky.  I thank Senator Kennedy for his expedited consideration of Mr. Klein’s nomination.  He has long been focused on maintaining the qualifications of those appointed to be U.S. Marshals.


We tried as well to move forward with the President’s nominations to the Privacy and Civil Liberties Oversight Board and the Sentencing Commission, but Republican holds prevented us from making progress and confirming President Bush’s nominees to those important posts.


After today’s confirmations, we have confirmed 40 executive nominations this Congress, including the confirmations of 13 U.S. Attorneys, nine U.S. Marshals, a Member of the U.S. Sentencing Commission, another Attorney General, Deputy Attorney General, Associate Attorney General, and Solicitor General.  Eighteen of those nominations will have been confirmed this year alone, despite this being a presidential election year.


Of course, we have considered these executive nominations while simultaneously moving forward with the confirmation of dozens of President Bush’s judicial nominations.  I have spoken many times about the partisan actions of the Republican-led Senate that created a judicial vacancies crisis by not considering circuit court nominees in 1996, 1997 and 1998.  Those years included the congressional session in the 1996 presidential election year, when the Republican Senate majority confirmed only 17 judicial nominations and refused to allow the Senate to confirm even one circuit court judge.  That same presidential election year the Republicans confirmed just four of President Clinton’s executive nominees.  By comparison, with today’s confirmations, we have confirmed 18 of President Bush’s.


As we prepare to close this Congress, I thank the Members of the Judiciary Committee for the tireless work that resulted in the confirmation of 68 of President Bush’s nominees to lifetime appointments to the Federal bench.  This work was all the more impressive because of the time and effort we devoted to rebuilding and restoring the Department of Justice after years of scandals led to the resignations of the Department’s entire senior leadership.


At the beginning of this Congress, the Judiciary Committee began its oversight efforts.  Those efforts revealed a Department of Justice gone awry.  The leadership crisis came more and more into view as I led a bipartisan group of concerned Senators to consider the United States Attorney firing scandal, a confrontation over the legality of the administration’s warrantless wiretapping program, the untoward political influence of the White House at the Department of Justice, and the secret legal memos excusing all manner of excess and subverting the rule of law. 


What our efforts exposed was a crisis of leadership that took a heavy toll on the tradition of independence that has long guided the Justice Department and provided it with safe harbor from political interference.  It shook the confidence of the American people.  Through bipartisan efforts among those from both sides of the aisle who care about Federal law enforcement and the Department of Justice, we joined together to press for accountability. 


After we exposed and uncovered the abuses at the Department, we referred a number of matters to the Department’s Inspector General (OIG) and Office of Professional Responsibility (OPR) for further investigation.  The three reports we have now received from those internal investigations have confirmed the worst of our findings and our fears.


The first two reports confirmed what the Judiciary Committee uncovered about the politicization of hiring practices at the Department.  They confirmed that the same senior Department officials involved with the firing of United States Attorneys were injecting improper political motives into the process of hiring attorneys for career positions throughout the Department, from career prosecutors, to immigration judges, to young attorneys through the Department’s prestigious honors program. 


Just this week, OIG and OPR issued a third report, this one validating our findings about the improper and unprecedented firing of U.S. Attorneys for political reasons.  These findings add up to another disturbing report card on the conduct of the Gonzales Justice Department.  This report confirms that the two most senior officials at the Department of Justice – Attorney General Alberto Gonzales and Deputy Attorney General Paul McNulty – “abdicated their responsibility to safeguard the integrity and independence of the Department by failing to ensure that the removal of U.S. Attorneys was not based on improper political considerations.”  It confirms what I have said all along -- the responsibility for this debacle was not the work of a few bad apples, as Attorney General Mukasey, former Attorney General Gonzales have suggested.  Responsibility rests at the top, and at the White House. 


This report might have told us even more if the investigation had not been impeded by the Bush administration’s refusal to cooperate and provide documents and witnesses.  In this debacle as in others, the Bush administration’s self-serving secrecy has shrouded many of their most controversial policies -- from torture, to investigating the causes of 9/11, to wiretapping.  The evidence in our investigation and in reports from the Inspector General and Office of Professional Responsibility shows that Karl Rove and others from the highest ranks of the White House were involved in the firings and focused on the political impact of Federal prosecutions.  The White House should not be allowed to hide from accountability.


Even though it has been clear for a long time that Attorney General Gonzales allowed politics to permeate the Department’s ranks, he continues to try to avoid accountability.  He has provided the Inspector General the same response he gave so frequently to Congress:  I don’t recall.  The threads of secrecy of this administration – from the White House to the Executive agencies – will continue to unravel for years to come.


When this investigation was handed over to a Federal criminal prosecutor recently to determine whether there was criminal wrongdoing, I warned the President that the American people will see any use of the pardon power or any grant of clemency or immunity to those from his administration involved in the U.S. Attorney firing scandal as an admission of wrongdoing and another misuse of power.  His administration has stonewalled the Congress and the Inspector General.  They should come clean.  They should have testified and given us the information we were forced to subpoena.  We do not want to see another repeat of the Scooter Libby misuse of power where the President’s people misled investigators and then he excused them from their lies and evasiveness.  There should be accountability and consequences.


Our oversight efforts did not complete our work.  In the last year alone we have held eight hearings to replenish the leadership ranks at the Department.  We confirmed the new Attorney General last November.  Today, in confirming Mr. Garre’s nomination to be Solicitor General, we complete that work.

The position of Solicitor General is a critical post that encompasses duties quite different than any other lawyer in the Government.  The Solicitor General is not only one of the highest ranking officials at the Justice Department and the chief advocate on behalf of the United States Government, but also holds a unique position as an officer of the court, with a duty to bring forward aspects of cases that the Supreme Court might not otherwise know.  Because of this critical role, the Solicitor General is often called “the Tenth Justice.” 


I remain concerned about many of the positions he has advocated while serving in the Solicitor General’s office and more recently as Acting Solicitor General.  For example, I strongly disagree with the administration’s position last year in Ledbetter v. Goodyear Tire and Rubber Co., a case in which the Supreme Court stuck a severe blow to the rights of working women to equal pay for equal work and to all working Americans.  The amicus brief filed by the government, which Mr. Garre signed as Principle Deputy Solicitor General, helped bring about that wrong decision.  I strongly believe it was contrary to the purpose and intent of Congress’ bipartisan efforts to root out discrimination against working women. 


For nearly two decades, Lilly Ledbetter, a supervisor at Goodyear Tire, was paid significantly less than her male counterparts.  Nevertheless, the brief Mr. Garre signed contended that she was not eligible for Title VII protection against discriminatory pay because she did not file her claim within 180 days of Goodyear’s discriminatory pay decision.  That view contradicted the position of the Equal Employment Opportunity Commission, which had stated that each paycheck could separately provide a cause of action.  The administration’s position was wrong and provided cover for the Court to throw out a jury verdict and compound the harm from the discrimination against Ms. Ledbetter.  I hope that, once confirmed, Mr. Garre will take seriously the intent of Congress and the need for equal justice for all in advocating the position of the United Statesbefore the Federal courts. 


I also disagree strongly with the position taken in an amicus brief this year signed by Mr. Garre inCrawford v. Marion County Election Board.  In this Supreme Court case Mr. Garre argued thatIndiana’s requirement of a photo identification for voting was “reasonable” and furthered the State’s interest in combating vote fraud.  He made this argument even though in-person voter fraud has proven time and time again to be a myth, and evidence shows that photo ID laws have already served to disenfranchise some of the most vulnerable American voters.  In several instances elderly nuns who were not able to vote as a result of Indiana’s laws.  Although theSupreme Court agreed with Mr. Garre’s position, 6-3, the Court left the door open for “as applied” challenges and statutory challenges to laws that burden voters’ fundamental right to participate in the electoral process by mandating a photo ID.  If confirmed, I hope Mr. Garre will act as he said in his hearing he would to enforce the Voting Rights Act’s anti-discrimination provisions against state photo ID laws that deter minority voter participation.


I hope Mr. Garre shares my view that it is vital that we ensure that we have a functioning, independent Justice Department, and that we ensure that this sad era in the history of the Department is not repeated.   We have seen what happens when the rule of law plays second fiddle to a President’s agenda and the partisan desires of political operatives and it is a disaster for the American people.  Both the President and the Nation are best served by a Justice Department that provides sound advice and takes responsible action, without regard to political considerations — not one that develops legalistic loopholes and ideological litmus tests to serve the ends of a particular administration. 


Jeff Sedgwick will also have an important role to play in the few months remaining in this administration.  The Office of Justice Programs plays a vital role in developing the Nation’s capacity to prevent and control crime and compensating and assisting crime victims.  Crime, including violent crime, has been on the rise, particularly in rural areas and smaller cities.  Many of us think it is in part the consequence of this administration’s failure to provide financial assistance to our state and local law enforcement partners.  Despite our repeated warnings, the Bush administration has systematically tried to dismantle Federal support for local and state law enforcement that was being provided through our successful Community-Oriented Policing Services (COPS) program, Byrne grants and other programs.  Under President Bush, billions have been cut from our state and local law enforcement efforts while we continue writing blank checks for police in Iraq.  I hope that Mr. Sedgwick helps us reverse this trend and turn the tide back against crime in rural areas and smaller cities where it has been on the rise.


I congratulate the nominees and their families on their confirmations today. 


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