[Congressional Record Volume 155, Number 43 (Wednesday, March 11, 2009)]
[Senate]
[Pages S3010-S3011]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                           Tragedy in Alabama

  Mr. SHELBY. Mr. President, I want to get into something else you have 
been reading about what happened in my State of Alabama yesterday. I 
offer my condolences to the families and friends of the victims killed 
in Samson, AL.
  Yesterday, my State of Alabama suffered the worst mass shooting in 
our State's history. As this tragedy unfolded, our law enforcement 
responded bravely. I commend them for their actions and efforts. I also 
offer my sincere sympathies to the victims, their families, and the 
community. This is a tragedy that did not have to happen.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan is recognized.
  (The remarks of Mr. Levin and Mr. Grassley pertaining to the 
introduction of S. 569 are printed in today's Record under ``Statements 
on Introduced Bills and Joint Resolutions.'')
  Mr. GRASSLEY. I suggest the absence of a quorum and ask unanimous 
consent that the time be equally divided.
  The PRESIDING OFFICER (Mrs. Shaheen). Without objection, it is so 
ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BROWNBACK. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BROWNBACK. Madam President, I rise to speak about the nomination 
of David Ogden to be Deputy Attorney General of the Department of 
Justice. To summarize what I see in the Record, what I have read, I am 
very disappointed in the Obama administration for nominating this 
individual who is obviously talented but has also obviously chosen to 
represent, sometimes on a pro bono basis, groups that push pornography. 
He even represented interests against child pornography laws that we 
have passed by unanimous votes in the Senate.
  Here is a gentleman who has taken up these causes as a lawyer. I 
appreciate his skill and ability as a lawyer. I appreciate his 
willingness to represent a client. But he has chosen to consistently 
represent pornography companies and groups. Even against the unanimous 
opinion of this body on child pornography cases, he has taken the other 
side. The message that sends across the country to people--when we are 
struggling with a huge wave of pornography, and then, at the worst end 
of it, child pornography--the message it sends around the rest of the 
country is this is a Justice Department that is not going to enforce 
these child pornography laws or is not concerned about this, when we 
have an epidemic wave of pornography, and particularly of child 
pornography, that is striking across the United States, and that this 
is harming our children. It is harming our society overall. Now, at the 
second to the top place of enforcement, you are putting your Deputy 
Attorney General who has taken on these cases, and sometimes in a pro 
bono manner.

  I have no doubt of his legal skills. But the message this sends 
across the country to parents, who are struggling to raise kids, is not 
a good one. Our office has been receiving all sorts of calls opposed to 
Mr. Ogden's nomination because of that very feature--and deeply 
concerned calls because they are struggling within their own families 
to try to raise kids, to try to raise kids responsibly, and to try to 
raise them in a culture that oftentimes is very difficult with the 
amount of violent material, sexual material that is out there, and 
hoping their Government can kind of back them a little bit and say: 
These things are wrong. Child pornography is wrong. It should not take 
place. It should not be on the Internet. And you should not participate 
in it.
  Instead, to then nominate somebody who has represented groups 
supporting that dispirits a number of parents and says: Is not even my 
Government and its enforcement arms going to take this on? Are they not 
going to be concerned about this, as I am concerned about it as a 
parent? I see it pop up on the Internet, on the screen, at our home way 
too often, and I do not want to see this continue to take place. Then 
along comes this nominee, who knocks the legs out from under a number 
of parents.
  I want to give one quick fact on this that startled me when I was 
looking at it. It is about the infiltration of pornography into the 
popular culture, and particularly directly into our homes, and now it 
is an issue that all families grapple with, our family has grappled 
with. My wife and I have five children. Three of them are out of the 
household now. We still have two of them at home. We grapple and 
wrestle with this. Once relatively difficult to procure, pornography is 
now so pervasive that it is freely discussed on popular, prime-time 
television shows. The statistics on the number of children who have 
been exposed to pornography are alarming.
  A recent study found that 34 percent of adolescents reported being 
exposed to unwanted--this is even unsolicited; unwanted--sexual content 
online, a figure that, sadly, had risen 9 percent over the last 5 
years. Madam President, 9 out of 10 children between the ages of 8 and 
16 who have Internet access have viewed porn Web sites--9 out of 10 
children between the ages of 8 and 16 who have Internet access have 
viewed porn Web sites--usually in the course of looking up information 
for homework.
  It is a very addictive situation we have today. I held a hearing 
several years back about the addictiveness of pornography, and we had 
experts in testifying that this is now the most addictive substance out 
in the U.S. society today because once it gets into your head, you 
cannot like dry off or dry out of it.
  The situation is alarming on its impact on marriages. There is strong 
evidence that marriages are also adversely affected by addiction to 
sexually addictive materials. At a past meeting of the American Academy 
of Matrimonial Lawyers, two-thirds of the divorce lawyers who attended 
said that excessive interest in online pornography played a significant 
role in divorces in the previous year. That is two-thirds of the 
divorce lawyers saying this is getting to be a situation that is 
impacting so many of our clients and is so pervasive.
  While David Ogden possesses impressive academic credentials, and he 
certainly is a talented lawyer, he has also represented several 
clients, significant clients, with views far outside the mainstream, 
and he has not, to my satisfaction, disavowed the views of these 
clients. He was given every chance to in hearings. He was trying to be 
pinned down by people on the committee about: What are your views? I 
understand your clients' views. What are your views? And he would not 
respond to those.
  He said: Well, these are views of my clients. I understand the views 
of your clients. If they are pushing pornography, child pornography, 
want to have access to this, I understand that. What are your views? 
And he demurred each time and would not respond clearly.
  Based on that record, I am led to believe it is highly likely David 
Ogden

[[Page S3011]]

may share the views of some of his clients--of those who have supported 
pornography--and I cannot trust him to enforce some of our Nation's 
most important antichild pornography laws--laws that he has a history 
of arguing are unconstitutional. That is a position he took as a 
lawyer: that these are unconstitutional, antichild pornography laws.
  In an amicus brief David Ogden filed in United States v. American 
Library Association, he argued that the Children's Internet Protection 
Act, which requires libraries receiving Federal funds to protect 
children from online pornography on library computers, censored 
constitutionally protected material and that Congress was violating the 
first amendment rights of library patrons. Now, that was the position 
David Ogden took.
  In a response to written questions submitted by Senator Grassley 
after his confirmation hearing, David Ogden indicated he served as pro 
bono counsel--for people who are not lawyers, that means he did it for 
free--in this case, further calling into question his personal views. 
If you are willing to represent a client for free, it seems to me there 
is some discussion or possibility you may really share your client's 
views on this issue regarding access to online pornography at 
libraries.
  The Children's Internet Protection Act passed this body, the Senate, 
by a vote of 95 to 3 back in 2000. Ninety-five Members of this body 
believed the Children's Internet Protection Act was an appropriate 
measure to protect children from Internet filth and was constitutional 
because our duty, as well, is to stand for the Constitution and to 
abide by the Constitution and uphold it.
  How can we trust David Ogden to enforce this law when he argued 
against it as a pro bono counsel?
  In another very disturbing case, Knox v. the United States, in which 
Stephen Knox was charged and convicted for violating antichild 
pornography laws--these are child pornography laws but child 
pornography laws which I think are in another thoroughly disgusting 
category--David Ogden filed a brief on behalf of the ACLU and others 
challenging the Federal child pornography statutes. At issue in this 
case was how child pornography is defined under the Federal statutes.
  I am sure many of my colleagues will remember the controversy that 
surrounded this case. As you may recall, Stephen Knox was prosecuted by 
the Bush Justice Department--during the first Bush Presidency--and 
ultimately convicted, after U.S. Customs intercepted foreign videotapes 
he had ordered. By the time his conviction was appealed, however, 
President Clinton was in office, and the Justice Department changed its 
position on Knox's conviction. Drew Days, Clinton's Solicitor General 
at the time, chose not to defend the conviction of Knox.
  The Clinton Justice Department said: Yes, he is convicted, but we are 
not going to prosecute this. But the Senate, by a vote of 100 to 0--
which is really rare to get around this place--and the House, by a vote 
of 425 to 3, rejected the Clinton Justice Department's interpretation 
of the child porn laws. The Senate unanimously said: Prosecute this. 
Prosecute this child pornography case.
  David Ogden was on the wrong side of this case. I urge my colleagues 
to consider whether a man who has taken such extreme positions on 
pornography, and especially child pornography, can be trusted to 
enforce Federal laws prohibiting this cultural toxic waste. I am not 
convinced that David Ogden does not share the views he advocated in the 
Knox case, and I am concerned that at the very least he may be 
sympathetic to the views of his former clients.
  I hope David Ogden proves me wrong and he demonstrates a strong 
willingness to enforce Federal child pornography and obscenity laws. 
These laws are on the books. I hope he enforces them. But I cannot in 
good conscience vote in favor of his nomination given his past record 
and the positions he has taken. His past positions have been far too 
extreme and outside of the mainstream for me, or I think for most 
Americans, and certainly for most parents, to be able to support him to 
be No. 2 in command of the Justice Department that enforces these laws.
  I realize many of my colleagues, and likely the majority, are going 
to cast their votes in favor of David Ogden. Before they do, I ask them 
to please consider the negative impact pornography has had--and 
particularly child pornography has had--on this society and the 
important role the Justice Department plays in protecting children from 
obscene and pornographic material, particularly child pornography.
  The infiltration of pornography into our popular culture and our 
homes is an issue that every family now grapples with. Once relatively 
difficult to procure, it is now so pervasive that it is freely 
discussed all over. Pornography has become both pervasive and intrusive 
in print and especially on the Internet. Lamentably, pornography is now 
also a multibillion-dollar-a-year industry. While sexually explicit 
material is often talked about in terms of ``free speech,'' too little 
has been said about its devastating effects on users and their 
families.
  According to many legal scholars, one reason for the industry's 
growth is a legal regime that has undermined the whole notion that 
illegal obscenity can be prosecuted. The Federal judiciary continues to 
challenge our ability to protect our families and our children from 
gratuitous pornographic images, and we must have a Justice Department 
that is committed to combating this most extreme form of pornography.
  Perhaps the ugliest aspect of the pornographic epidemic is child 
pornography. This is where Mr. Ogden's record is most disturbing 
because he is outside of even the minimal consensus on pornographic 
prosecutions that exist. Children as young as 5 years old are being 
used for profit in this, regrettably, fast-growing industry. While 
there has been very little consensus on the prosecution of even the 
most hard-core adult pornography, there has been widespread agreement 
on the necessity of going after the purveyors of child porn. Despite 
this agreement, this exploitive industry continues to thrive. Every 
day, there are approximately 116,000 online searches for child 
pornography--116,000. I think we can all agree that we have a duty to 
protect the weakest members of our society from exploitation and from 
abuse.
  I fear David Ogden will be a step backward--and certainly sends that 
signal across our society and to our parents and our families in this 
effort to combat this most dangerous form of pornography. For those 
reasons, I will be casting a ``no'' vote on his confirmation.
  Madam President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. HATCH. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.