[Congressional Record Volume 154, Number 186 (Thursday, December 11, 2008)]
[Senate]
[Pages S10915-S10918]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       NOMINATION OF ERIC HOLDER

  Mr. KYL. Mr. President, I want to speak for just a moment about the 
comments that Senator Specter made earlier about the process for 
considering the nomination of Eric Holder as Attorney General.
  The Republican members of the Judiciary Committee have been seeking 
information and doing work to prepare for the hearing. But there is a 
great deal of information that is not yet available and a great deal of 
information that hasn't yet been reviewed, all to the point that it is 
going to take a little bit of time to prepare for the hearing in order 
to do it right. Of course, we want to do it right.
  While there is absolutely no desire on anyone's part to slow a 
process down or filibuster or in any other way make it difficult for 
the orderly process to unfold for the confirmation of the nominee of 
the President, we do ask that we be accorded the same consideration 
that was given to others in this situation and that there be adequate 
time to confirm him. I see no reason, if he is qualified and if he is 
confirmed, that he could not take office very soon after the President 
himself takes office, perhaps as early as a week or two after that. So 
nobody is talking about a long delay, but we do need to have adequate 
time.
  In that regard, since the chairman of the Judiciary Committee has 
indicated he would like to begin holding hearings on January 8, which 
is literally right after we begin the swearing in of the new Members 
and the beginning of the next session, there is not adequate time for 
the kinds of things that have to be done if that is the date that we 
meet. This has been conveyed to the chairman by Senator Specter. He has 
asked for a reasonable amount of time to get prepared. I hope that can 
be accommodated. It is of sufficient concern that several of us have 
indicated, through a letter to the chairman, that we are going to 
insist on having adequate time for the consideration of his nomination.
  I remember the nomination of John Ashcroft who was a colleague of 
everyone here, a Senator from Missouri, when he was nominated to become 
the Attorney General; nevertheless, it took 4 days of hearings for the 
Senate to decide to confirm him. His hearings began on Tuesday, January 
16. As I said, they lasted for 4 days. The chairman of the committee 
has, as I said, indicated that the Holder hearings would be scheduled 
for January 8, more than a week earlier. I don't think that is adequate 
for the things we have to do. Ashcroft was voted on by the full 
committee on January 30. He was confirmed on February 1. So that timing 
certainly would be totally appropriate for nominee Holder and would not 
in any way delay the administration with respect to the office of the 
Attorney General. In fact, irony of ironies, because Senator Ashcroft 
was not confirmed until February 1, Eric Holder himself, who was in 
charge at the end of the Clinton administration, served as Acting 
Attorney General at the beginning of the Bush administration. Senator 
Specter, when he was chairman, accommodated numerous requests for 
sufficient time on the part of the then-ranking Democrat, Senator 
Leahy, on, for example, the nominees of Chief Justice Roberts and 
Justice Alito. I think reciprocation would be in order.
  Right now, we don't even have Eric Holder's questionnaire or FBI 
background investigation, all of which are necessary to prepare for the 
hearing.

[[Page S10916]]

Senator Specter noted that we currently have 86 boxes of archived 
committee documents relating to Mr. Holder's tenure at the Justice 
Department to review. There are additional documents that have been 
sought from the Department of Justice and the Clinton library which 
would provide additional information that we will need to examine.
  One might say this is a lot of work to do for a nominee. Bear in 
mind, this is the Attorney General of the United States, an individual 
who has some controversy in his past. I don't know whether this 
controversy is sufficient to suggest that he should not be confirmed, 
but that is what the investigation and hearings, of course, are all 
about. We are familiar with what these items are.
  Mr. Holder was involved in the pardons of members of the FALN 
organization by President Clinton, the pardons of Marc Rich, Pincus 
Green, Susan Rosenberg, and Linda Sue Evans. He was also involved in a 
controversial raid in Miami by the Border Patrol action to take Elian 
Gonzales into custody. He was involved in death penalty approvals, 
rejections, or disputes. One that troubles me--and I want to get to the 
bottom of this--was the decision of the Department of Justice not to 
defend the power of Congress to enact a particular statute, 18 U.S.C 
3501. There was Supreme Court litigation called Dickerson v. United 
States, including Department of Justice responses to Judiciary 
Committee inquiries on the subject and views of U.S. attorneys and 
Department advisory panels on the matter. The case involved challenging 
Miranda doctrine. Paul Cassell, a competent attorney, argued that case. 
The Justice Department, contrary to precedent and tradition, didn't 
defend the Government's position; that is to say, the Congress having 
passed a statute and defended the power of Congress to enact that 
statute.
  I don't know whether any of those controversial matters are enough to 
reject the nominee, but they are well known, controversial, and I think 
we have an obligation to look into all of these matters. I am not 
alone. Richard Cohen wrote in the Washington Post that Eric Holder 
should not be the Attorney General. I don't know whether he is right or 
not, but the questions he raises need to be examined.
  Glenn Greenwald wrote in the Salon magazine that Holder's involvement 
with the Rich pardon was ``substantial, continuous, and concerted, 
much, much more than `peripheral,' '' which is the way Holder himself 
described it.
  One final note. In addition to having plenty of time to review and 
prepare and review documents and the FBI interviews and background 
checks of Eric Holder and prepare for his hearings, we will want to 
have sufficient time also to carefully consider other top Department of 
Justice nominees, such as the Deputy Attorney General, Associate 
Attorney General, Solicitor General, and the heads of the Office of 
Legal Counsel, the Criminal Division, the Civil Rights Division, and 
the National Security Division.
  I hope if we set the right precedent with the Attorney General 
himself, these other matters will be considered in due time and we 
won't have to argue each time there is an insufficient opportunity to 
conduct the kind of examination that would be necessary for positions 
as important as these.
  So I hope our colleague, the chairman of the committee, will 
reconsider his initial decision to schedule the hearings on January 8. 
If we can move those back even a week, that would provide time for us 
to conduct the process properly. We are not asking for some outrageous 
delay just for the sake of delay. I hope he can accommodate us, and 
knowing of the views of the other members of the committee on the 
Republican side, that he would be willing to do so.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Nelson of Florida). Without objection, it 
is so ordered.
  Mr. WHITEHOUSE. Mr. President, a moment ago I had the honor of 
presiding before the distinguished Senator from Florida replaced me in 
the chair, and I was presiding during the time the distinguished 
Senator from Iowa, Mr. Grassley, and the distinguished Senator from 
Arizona, Mr. Kyl, came to the floor to discuss the timing of the 
nomination proceedings for the President-elect's candidate for Attorney 
General, Eric Holder. I had the chance to hear the points that they 
made, and I wish, just briefly, to respond to a few of them.
  As the junior member of the Senate Judiciary Committee, I am 
certainly in no position to speak for the chairman. Obviously we heard 
Senator Kyl ask that the timing be done on a reasonable basis, and I 
think Senator Leahy, the very distinguished chairman of the Judiciary 
Committee, is nothing if not reasonable and has shown enormous 
reasonableness with the timing of all the nominees that have come 
before him. And I would expect this to be no different. But in 
evaluating the reasonableness of the schedule that the chairman has 
proposed, or, I should say, announced, it may be worth putting it into 
the context of the history of these sorts of nominees.
  If you go all the way back to President Carter, for more than 30 
years, whether the Senate was controlled by Republicans or Democrats, 
or the President was a Republican or a Democrat, we have had nominees 
for Attorney General come through the process. And throughout that long 
span of time, the average time between the announcement by the 
President of his choice for Attorney General and the nomination 
hearing, the average amount of time has been 29 days. And the average 
amount of time until a committee vote has been 37 days.
  So that is the background. If you average over 30 years, from the 
announcement, 29 days to the hearing, 37 days to the vote. The schedule 
that Chairman Leahy has proposed is 39 days to the hearing, and he 
hopes for 50 days to the vote.
  So instead of the average that it has been over 30 years of 29 days, 
the Republicans have 10 extra days beyond the average to do the work 
that they assert that they need to do, and the vote may not come for 50 
days, which is 11 days longer than the average.
  I think everyone in this body understands the importance of a new 
President having his new Attorney General in place quickly. The 
President is going to be sworn in on January 20, and I think it is in 
all our interests as Americans to make sure that his choice is honored 
in a reasonable timeframe so that when the President takes office, he 
has an intact team. Certainly with the Attorney General as such an 
important part of the President's national security team in this time 
of national security concerns, he should have an intact team.
  And so it seems to me that the average is a pretty reasonable place 
to start, and when the chairman has given an extra 10 days beyond the 
average just to the beginning of hearings, and hopefully an extra 13 
days beyond the average for the vote, it's a pretty good signal that 
the chairman is being very reasonable about this.
  Most recently, some of the Attorneys General whom we have seen, 
Attorney General Mukasey had a period of 30 days from his nomination to 
the start of the hearings. That was at President Bush's request. 
Remember, he indicated that he wanted to get him in place soon. The 
Department was in grave distress and we needed to act quickly. We acted 
in 30 days. We are acting here in 39 days, more than was given for 
Attorney General Mukasey. The vote hopefully will be the same as for 
Attorney General Mukasey: 50 days from the announcement to the vote.
  It doesn't sound unreasonable. Nobody said it was unreasonable when 
Attorney General Mukasey was put through that schedule. I don't see how 
it can be unreasonable that Eric Holder should have a more generous 
schedule, and somehow that is no longer reasonable.
  For Attorney General Ashcroft, it was 25 days to the hearing instead 
of 39; 39 days to the vote instead of the hoped-for 50. For Attorney 
General Reno, 26 days to the hearing instead of 39 days; 27 days to the 
vote instead of the hoped-for 50. Nearly twice as much time as for 
Attorney General Reno.
  So I think the point is pretty clear. It is the tradition and the 
history of

[[Page S10917]]

this body to honor the President's request to act quickly, and in terms 
of the reasonableness of the schedule that Chairman Leahy has proposed, 
he has proposed a schedule that is on the generous side of the average 
and of recent history.
  With respect to the concern that there is a lot to look at in Eric 
Holder's history, well, every lawyer who is experienced and active 
enough in the profession to be a candidate to be Attorney General of 
the United States has got a long history to look at. That is a given. 
That is a constant. That is not something that is different about Eric 
Holder than about any of his predecessors.
  Indeed, if anything, the opposite concern would be justified, which 
is that we have already had a lot of time to look at Eric Holder. First 
of all, he has an astonishingly distinguished record to be Attorney 
General. It is remarkable--his personal story, his career. It is all 
spectacular, truly. But specific to the question of nomination, this is 
a lawyer who came right after law school to the Department of Justice 
and served as a prosecutor for a decade prosecuting public corruption 
cases. So he had to be cleared by the FBI to come in as a Department of 
Justice attorney, and he served there for all those 10 years. That is 
all a matter of clear public record. Everybody has had a chance to look 
at that forever.
  The next thing that happened, in 1988, Eric Holder was nominated by 
President Ronald Reagan to the bench to serve as Superior Court judge 
in Washington, DC. Again, he was confirmed by the Senate. We had a full 
look of everything up to 1988.
  After his service on the bench, Eric Holder was nominated by 
President Clinton to serve as the United States Attorney for the 
District of Columbia. United States Attorney Holder and I were 
colleagues; me in Rhode Island, him down in DC. I went through that 
process of nomination and confirmation. It is exhaustive. It was done 
for him. He was confirmed at that time. So as of the date he was 
appointed United States Attorney for the District of Columbia, we had 
done a complete Senate look of his record to that point.
  And that wasn't the last time. In 1997, President Clinton nominated 
United States Attorney Holder to serve as the Deputy Attorney General 
of the United States, Attorney General Reno's No. 2 in that department. 
And he was then confirmed by this body, the Senate, unanimously. And, 
again, we had that full record of his before us at that time.
  So this is a guy who has been the subject of very public attention as 
a public official, the Deputy Attorney General. There isn't a whole lot 
that one does as Deputy Attorney General that isn't available to the 
public, that isn't in the news media. This is not somebody who has come 
out of nowhere and who has a great, vast mysterious past history that 
we need to have a look at. Indeed, this body has had three looks at 
him, confirmed him three separate times. The most recent time as late 
as 1997, unanimously. So I think the notion that--with only 1997 to now 
to look through, a period of a mere decade--the idea that he is being 
shoved unreasonably rapidly through the process, when he is 
substantially slower than the average, simply doesn't hold water.
  And I would urge my Republican colleagues--again, they can have 
discussions with the chairman that obviously are at a rank higher than 
mine--but I would urge my colleagues to consider their views in that 
context: in the context of a spectacularly qualified individual who has 
thrice been confirmed by this body, as recently as 1997, and who is 
being given more time for scrutiny than the average or the recent Bush 
appointees, and in an environment in which I think we can all agree 
that after the Bush management of the Department of Justice, we badly 
need a new Attorney General in there and soon.
  So with those observations I will yield the floor. I thank my 
colleagues for waiting while I finished my remarks. I see the 
distinguished Senator from Oklahoma on the other side of the Chamber 
and I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma is recognized.
  Mr. COBURN. I ask to speak in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. COBURN. Mr. President, I appreciate my colleague and his informed 
words. Much of what he has stated I agree with, but there is a 
significant difference. No. 1 is I was not in the Senate when Mr. 
Holder was confirmed. Given the facts that played out associated with 
pardons that President Clinton had, the look needs to be refreshed 
without any question because there is no question that Mr. Holder erred 
in his judgment and has essentially said so, in association with one 
Mr. Marc Rich, a fugitive.
  I do not doubt Mr. Holder has a distinguished record. He is well 
qualified for lots of areas. I do not think it ought to be on the floor 
that we debate whether we have a hearing. But I can tell you that the 
information we have requested, both from the Clinton libraries and 
others, will not be available to us to peruse and to study. I may in 
fact in the long term end up voting for Mr. Holder, but I am not about 
to do anything less than a very thorough job.
  I also remind my colleagues I was the first Republican Senator in the 
midst of the committee to call for the resignation of Attorney General 
Gonzales--rightly so. The position of Attorney General, although it is 
appointed by the President, is very different than all the rest of the 
appointments because he is for all of us, every citizen in this 
country, the chief law enforcement officer of this land. His loyalty is 
not to the President. His loyalty has to be to the Constitution. It has 
to be to the responsible bodies that guide this country, although if we 
in fact have hearings early, we will have to have additional hearings. 
We will not allow a vote to occur until we have thoroughly, to each 
member of the Judiciary Committee's satisfaction, had the record 
examined and had the questions answered that are going to need to be 
answered with regard to some of the events that have taken place late 
in the Clinton administration.
  That is not to cast any aspersions on Mr. Holder. I think he is a 
fine man. But judgment is the key thing that is most important and 
there is a red flag. So if it is insisted that we go early, earlier 
than we are prepared so we can truly ask the questions we think the 
country would need us to ask, then I think we will have a difficult 
time ever moving that nomination.
  That should not be the case. The fact is this gentleman deserves the 
best, the most thorough opportunity to explain himself in a way where 
people are asking proper questions, not improper questions. More 
important, the American people deserve for us to do our job. That means 
we have to be very well briefed, very well studied on the questions and 
circumstances about which we will apply them.
  Mr. WHITEHOUSE. Will the Senator yield for a question?
  Mr. COBURN. I will be happy to in a moment.
  I have given positive comments to the press on Mr. Holder, so I am 
not necessarily someone in opposition. But I can tell you I am in 
opposition to not being in a position to do my job. It is going to be 
impossible, and I will tell my colleague that, with the schedule that 
has been set forth. I will not be able to be prepared at the time. I 
have one staff lawyer. For us to go through everything to my 
satisfaction, for me to fulfill my oath, that is not a possibility 
between now and January 9.
  The other thing I would say is much of the information we have 
requested is not even going to be available to us until January 6. So 
it would be terrible to start the next Congress off having a fight 
about a fight. My hope is we can come to a compromise so we all feel 
very well prepared.
  There is no intent to delay Mr. Holder's nomination. There is every 
intent to make sure we are prepared to thoroughly vet his 
qualifications of independence and judgment. It is not his 
qualifications as to whether he has the capability to fulfill the role. 
It is whether he will demonstrate the independence and the judgment 
with which to fulfill it.
  As my colleague knows--he was at the hearing when I asked the 
Attorney General to resign--I am not a partisan. The President-elect 
who nominated this man I have a great deal of respect for. But I am 
going to do my job. If it means holding up a nomination until I get all 
the answers, then that is what I

[[Page S10918]]

will do. So there is no reason for us to do that by not accommodating 
the ranking member on this committee and setting the schedule with 
which the minority on that committee are not prepared to be prepared to 
answer that.
  With that, I am happy to yield to my colleague.
  Mr. WHITEHOUSE. I appreciate that very much. I thank the Senator from 
Oklahoma for his courtesy for yielding.
  I wanted to make sure the distinguished Senator was not suggesting 
that when the Senate allowed 26 days between Attorney General Reno's 
announcement and her nomination hearing, or allowed 25 days between 
Attorney General Ashcroft's announcement and his nomination hearing, or 
allowed 30 days between Attorney General Mukasey's announcement and his 
nomination hearing that the Senate was then underprepared or had not 
done its job in evaluating, or didn't have enough time to evaluate 
those candidates. I think they probably did. They appeared to going 
forward. By comparison, the 39 days----
  Mr. COBURN. Reclaiming my time----
  Mr. WHITEHOUSE. If I could finish the question----
  Mr. COBURN. I suggest we did a poor job with Attorney General 
Gonzales, that is No. 1. No. 2, I was not here then so I don't know 
whether we did or did not. Mukasey--the difference that would lie is 
there is a large red flag on one or two specific actions of this 
gentleman as he acted as assistant Attorney General. That requires good 
scrutiny.
  I assure my colleague that does not mean, and I think he knows this--
I have not made a decision on this gentleman and I will not until we 
have gone through the hearing process. As I have said to the press, I 
am generally inclined to think he is very well qualified for this. But 
the question of judgment will require a lot of research on associated 
issues that have been outlined here.
  So, to me, it is not a game I am playing. I think my colleagues in 
the Senate know I work very hard to stay informed and up to detail on 
every issue that is before us. I would say to my colleague, to me, I 
don't care what the time was ever. What I care about is do we do it 
right so we do not have a repeat.
  I am sure my colleague knows he doesn't want us to have a repeat of 
making a mistake and not thoroughly vetting someone to the degree we 
should.
  My hope is the Judiciary Committee in the next Congress operates very 
smoothly, that we stand on the principles that we spoke about as we 
went through this last year, and that we do not see the process of 
trying to slow down judicial appointments because it is a partisan 
issue.
  He has my pledge that will never be anything I will pertain to or 
participate in. If somebody is qualified and they are this President's 
nominee and they are qualified after going through the Judiciary 
Committee and I believe they should be voted on, I intend to vote for 
them and not hold them up. But I think this is a very different 
instance. There are two specific problems that have to be very well 
vetted.
  From what we have seen so far, the vast majority and minority have 
not met Mr. Holder. We are going to be asked to meet with him on the 
day before the committee hearing so we will not have had the time even 
after we meet with him to be able to cross-check what we have asked him 
against what facts we know because we will not have all the facts in, 
because we will not even have all the records from the Clinton library 
at that time.
  I suggest we ought to start it off in more of a spirit of 
cooperation. My ranking member is of the learned opinion for the years 
that he has been here, and he is a proven expert in the law, that we 
need more time. We hope that request would be honored.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island is recognized.
  Mr. WHITEHOUSE. I wanted, while the Senator from Oklahoma is still on 
the floor, to let him know I appreciate his concern and I am grateful 
for his kind words. I would hope the one or two red flags that he has 
mentioned are not such as to justify necessarily extending the period 
between nomination and confirmation hearings more than 2 weeks beyond 
what the Senate gave for other nominees such as Attorney General 
Thornburgh, Attorney General Barr--almost 2 weeks for Attorney General 
Reno, 2 weeks longer than for Attorney General Ashcroft, 1 day short of 
2 weeks longer than for Attorney General Meese. Some of these people 
have some red flags too, but the Senate was able to do its job timely 
and I hope we will do so again.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.

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