The Nomination Of Mark Filip To Be Deputy Attorney General

Today we continue the process of rebuilding the integrity and independence of the Justice Department by confirming the nomination of Mark R. Filip to be the new Deputy Attorney General, the number two position at the Department of Justice, who acts as the Attorney General in the absence of the Attorney General. 

Regrettably, this important nomination has been stalled for over a month due to the bad faith of the Bush-Cheney administration in failing to process Democratic recommendations to independent boards and commissions, and Senate Republicans’ rejection of up or down votes on nominations to the Federal Election Commission.

I commend the Majority Leader for his efforts to resolve this impasse. I also thank him for agreeing with me to allow the Filip nomination to proceed at this time.  It is a demonstration of good faith on his part and I thank him. I strongly support the Majority Leader in his efforts to make progress by calling up Judge Filip’s nomination today.

A little more than a year ago, the Judiciary Committee began its oversight efforts for the 110thCongress.  Over the next nine months, our efforts revealed a Department of Justice gone awry.  The leadership crisis came more and more into view as Senator Specter and 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. 

This crisis of leadership has taken 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 that resulted in a change in leadership at the Department, with the resignations of the Attorney General and many high-ranking Department officials – including then-Deputy Attorney General Paul McNulty, whose successor we consider today.

The tired, partisan accusations the President engaged in at the White House recently, in which he used Republican Senators and nominees as political props, are belied by the facts.  They are about as accurate as when President Bush ascribed Attorney General Gonzales’ resignation to supposed “unfair treatment” and suggested “his good name” was “dragged through the mud for political reasons.” The U.S. Attorney firing scandal was of the administration’s own making. It decimated morale at the Department of Justice.  A good way to help restore the Justice Department would be for this administration to acknowledge its wrongdoing.  

We need a new Deputy Attorney General.  We need someone who understands that the responsibilities and duties of that office are not to act as a validator for the administration, or as the chief defense lawyer for the White House.  We are reminded by the examples of Elliot Richardson and William Ruckelshaus from the Watergate era -- and more recently the examples of James Comey, Jack Goldsmith, and Alberto Mora -- that law enforcement officials must enforce the law without fear or favor to their benefactors at the White House.  We have now seen what happens when the rule of law plays second fiddle to a President’s agenda and the partisan desires of political operatives. 

The truth is that it was the President who deferred the critical work of restoring the Department’s independence and credibility by delaying this nomination for half a year.  This administration knew from at least May 14, 2007, when Mr. McNulty announced that he was resigning, and should have known for weeks before, that there was to be a vacancy in the important position of Deputy Attorney General.  Yet even after the former Deputy announced his resignation and proceeded to resign months later, the administration failed to work with the Senate to fill this vital position.

The President did not nominate Judge Filip until last December.  I announced that the Judiciary Committee would hold a hearing less than two weeks later, before Congress adjourned for the year, immediately upon receiving the necessary background materials from the White House.  The Committee moved as expeditiously as possible and we reported out Judge Filip’s nomination at our first executive business meeting of the 2008 session. 


What is being ignored by the President and Senate Republicans as they play to a vocal segment of their Republican base is that we have worked hard to make progress and restore the leadership of the Department of Justice.  In the last few months, we have confirmed a new Attorney General, and held hearings for the number two and number three positions at the Department of Justice, as well as for several other high-ranking Justice Department spots. 


It is vital that we ensure that we have a functioning, independent Justice Department.  A month ago, the Judiciary Committee held our first oversight hearing of the new session and the first with new Attorney General Michael Mukasey.  We will hold another oversight hearing this week with FBI Director Mueller.  These are more steps forward in our efforts to lift the veil of White House secrecy, restore checks and balances to our government, and begin to repair the damage this administration inflicted on the Department, our Constitution, and fundamental American values. 

We continue to press for accountability even as we learn startling new revelations about the extent to which some will go to avoid accountability, undermine oversight, and stonewall the truth.  We find shifting answers on issues including the admission that the CIA used waterboarding on detainees in reliance on the advice of the Department of Justice; the destruction of White House emails required by law to be preserved; and the CIA’s destruction of videotapes of detainee interrogations not shared with the 9/11 Commission, Congress or the courts.  The only constant is the demand for immunity and unaccountability among those in the administration. This White House continues to stonewall the legitimate needs for information articulated by the Judiciary Committee and others in the Congress, and contemptuously to refuse to appear when summoned by congressional subpoena. 

In spite of the administration’s lack of cooperation, the Senate is moving forward with the confirmation of Judge Filip today.  In spite of the partisan, political display at the White House last month, staged while a convention of right-wing activists were in town, we are proceeding today.


With Judge Filip’s confirmation, we will have confirmed 23 executive nominations, including the confirmations of nine U.S. Attorneys, four U.S. Marshals, and the top two positions at the Justice Department so far this Congress.


We could be in a position to make even more progress if the Republican members of the Judiciary Committee would work with us in considering the nominations of this Republican President.  We have had the nominations of Kevin O’Connor to be Associate Attorney General, the number three position at the Department, and Gregory G. Katsas, to be Assistant Attorney General of the Civil Division, on our agenda since the middle of February.  Three weeks ago, I placed the O’Connor and Katsas nominations on the Committee’s agenda but Republican Members of our Committee did not show up to make a             quorum at that meeting or at our meeting last week.  I adjourned both our February 14 and February 28 meetings for lack of a quorum.  At the first meeting, only one Republican Senator was present.  At the latter, the Ranking Member chose to leave.  I hope we will be able to act on those nominations this week.


Of course, we could have made even more progress had the White House sent us timely nominations to fill the remaining executive branch vacancies with nominees who will restore the independence of federal law enforcement.  There are now 19 districts across the country with acting or interim U.S. Attorneys instead of Senate-confirmed, presidentially-appointed U.S. Attorneys, and for which the administration has still failed to send the Senate a nomination.  For more than a year I have been talking publicly about the need to name U.S. Attorneys to fill these vacancies to no avail and urging the President to work with the Senate. 


I was disappointed but not surprised to see the administration return to tired political attacks. What better time than right now, when the economy is slipping farther off the tracks, when the President’s budget shows record annual triple-digit deficits, when al Qaeda is stronger and more virulent than ever, according to General Hayden and Director McConnell, and with Osama bin Laden is still at large, when gas prices and unemployment are rising, and a mortgage crisis grips many parts of the country. I wish the President would put aside his partisan playbook and work with us.


I trust that Mark Filip understands that the duty of the Deputy Attorney General is to uphold the Constitution and the rule of law — not to work to circumvent it.  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 to serve the ends of a particular administration. 


I congratulate Judge Filip and his family on his confirmation.


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