[Congressional Record Volume 155, Number 44 (Thursday, March 12, 2009)]
[Senate]
[Pages S3051-S3054]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  NOMINATION OF THOMAS JOHN PERRELLI TO BE ASSOCIATE ATTORNEY GENERAL

  The bill clerk read the nomination of Thomas John Perrelli, of 
Virginia, to be Associate Attorney General.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, what is the agreement on the Perrelli 
nomination?
  The PRESIDING OFFICER. There is to be 90 minutes of debate, evenly 
divided.
  Mr. LEAHY. Mr. President, I am only going to speak for 2 or 3 
minutes. I have had a number of Senators, both Republican Senators and 
Democratic Senators, ask if there is a possibility of this to be a 
voice vote. A number of them have airplanes to catch. I mention that 
for Senators on both sides of the aisle.
  I am perfectly willing at some appropriate time to yield back all our 
time and have a voice vote on President Obama's nomination of Thomas J. 
Perrelli to be the Associate Attorney General, the number three 
position at the Justice Department. He is a superbly qualified veteran 
of the Department of Justice who has chosen to leave a lucrative 
private practice to return to public service. This nomination was 
reported out of the Judiciary Committee one week ago by a strong, 
bipartisan vote of 17-1. I thank Senator Specter, Senator Hatch, 
Senator Kyl, Senator Sessions, Senator Graham and Senator Cornyn for 
their support of this important nomination.
  Given Tom Perrelli's background and qualifications, this strong 
support is no surprise. He is the managing partner of the Washington, 
D.C. office of Jenner & Block. Before that he held important posts at 
the Justice Department, earning a reputation for independence and 
integrity, as well as the respect of career lawyers at the Department. 
Mr. Perrelli joined the Justice Department in 1997 as Counsel to the 
Attorney General. In that role, Mr. Perrelli assisted the Attorney 
General in overseeing the civil litigation components of the Department 
of Justice, and also worked on a wide variety of special projects, 
including professional responsibility issues for Department attorneys, 
and law enforcement in Indian Country.
  From 1999 to 2001, Mr. Perrelli served as Deputy Assistant Attorney 
General in the Civil Division, supervising the Federal Programs Branch. 
That branch defends Federal agencies in important constitutional, 
regulatory, national security, personnel and other litigation. In 
addition, he played a leading role on significant policy issues ranging 
from medical records privacy, the use of adjusted figures in the census 
to Indian gaming, and social security litigation.
  A Phi Beta Kappa graduate from Brown University and graduate of 
Harvard Law School where he served as the Managing Editor of the 
Harvard Law Review, Mr. Perrelli has demonstrated throughout his years 
in Government that he understands that the role of the Department of 
Justice is to be the people's lawyer, with first loyalty to the 
Constitution and the laws of the United States. He clerked for Judge 
Royce Lamberth, a no nonsense judge. In private practice, first as an 
associate at Jenner & Block from 1992 to 1997 and then, again, from 
2001 to the present where he became a partner and then the managing 
partner of its well-respected Washington office, he is recognized as an 
outstanding litigator and manager. He will need all those skills to 
call on all his experience in the challenging work ahead.
  Numerous major law enforcement organizations have endorsed Mr. 
Perrelli's nomination, including the National President of the 
Fraternal Order of Police, the Major Cities Chiefs Association, and the 
National Association of Police Organizations. Paul Clement, who worked 
for Senator Ashcroft and then Attorney General Ashcroft and was 
appointed by President Bush to be Solicitor General, wrote that career 
professionals at the Department who had worked with Mr. Perrelli ``held 
him in uniformly high regard'' and that Mr. Perrelli's ``prior service 
in the Department should prepare [him] to be a particularly effective 
Associate Attorney General.'' He also described Mr. Perrelli as ``an 
incredibly skilled lawyer'' whose ``skills would serve both Tom and the 
Department very well if he is confirmed as the Associate Attorney 
General.''
  I urge the Senate to confirm Tom Perrelli to the critical post for 
which President Obama has nominated him. I look forward to 
congratulating him, his wife Kristine and their two sons, James and 
Alexander on his confirmation.
  I will withhold the remainder of my time. Before I do that, I know 
the floor staff on both parties are seeing whether it is possible to 
shorten the time. If it is--I am stuck here this afternoon, but for 
those Senators who are trying to grab a flight out of here, it would be 
good to let them know. I retain the remainder of my time. I see a 
distinguished former member of our committee, the Senator from Kansas, 
on the floor. I retain the remainder of my time and yield the floor.
  The PRESIDING OFFICER. The Senator from Kansas is recognized.
  Mr. BROWNBACK. Mr. President, I rise to speak on the case of Mr. 
Perrelli, nominated to be Associate Attorney General. I rise to speak 
in opposition to the nomination. I will not be long, but I think there 
is an important policy issue that needs to be discussed.
  I would be prepared to yield back time after that point in time. I do 
not know if we have other people who desire to speak, so Members could 
move on about their busy day.
  I do think we have an important discussion here. I have no doubt of 
the qualifications of Mr. Perrelli to be Associate Attorney General. I 
think from what the chairman has stated--and I have no reason to 
dispute what the chairman has stated about the qualifications of Mr. 
Perrelli. I think they are good. I do not ascribe bad motives 
whatsoever to him or anybody. But I think there is a very important 
policy discussion that needs to take place here, with an opportunity to 
vote, before we put this individual third in command of the Justice 
Department, to oversee management of the Department's day-to-day 
operations, including formulating departmental policies.
  Concerns have been raised with regard to Mr. Perrelli's nomination to 
be Associate Attorney General primarily due to his pro bono 
representation of Terri Schiavo's husband, Michael

[[Page S3052]]

Schiavo, in his effort to allow the starvation to take place, and the 
dehydration, of his wife. The death that took place several years ago 
captured the discussion and the thoughts in the country about issues 
about the quality of life and whether we protect life that is in a 
diminished qualitative state. It was a tough discussion. It was a tough 
debate. I was here and involved with it, as were a number of other 
individuals. It was one that went back and forth for some period of 
time. Terri Schiavo, as I might remind a number of individuals, was in 
a very difficult mental condition. Her husband was desiring to withhold 
food and water from Terri Schiavo.
  The family members of Terri Schiavo: No, we should not do this. We 
should allow her to continue to live. Food, water--provide those items 
to her.
  It pulled back and forth on people. And the fundamental root question 
involved in it is, Do we put a subjective value on human life or is all 
human life sacred, per se, in an objective sense? Because it is human 
life, is it sacred, per se, or is there some sort of threshold issue we 
should be considering on whether we protect human life to the degree 
fully that we can and certainly on the issues of providing food and 
water? That was kind of the policy discussion and that was the 
conundrum we were in as a country because people could see both sides 
of this issue and say: Gosh, she is in a difficult spot as an 
individual. Her husband says: Let's withhold food and water. The family 
says: No. And the country was brought into the discussion, the debate, 
as was this body.
  Mr. Perrelli was pro bono, representing for free, Michael Schiavo, in 
this case, who was the primary proponent to withhold food and water for 
Terri Schiavo. I think before we put a person who took that position--
he did this for free--into the No. 3 position at the Justice Department 
of the United States, we should discuss that because people are policy 
and what they view and what they stand for does find its way into 
policy apparatus for the United States of America. And this is a key 
issue for us.
  I want to put it very clearly. While there is a lot of emotion 
surrounding this, there is a fundamental policy question, as I 
mentioned a bit earlier, about this, and that is the basic issue of, do 
we view human life sacred, per se, or does the dignity that we treat 
individuals with depend on their physical or mental status as human 
beings? And we shouldn't get around the starkness of that debate. It is 
a stark debate, but it is an important one, and I think clearly we 
should err on the side of saying: If this is a human person, then they 
are regarded as fully human with all human rights regardless of any 
sort of diminished physical or mental capacity they might have. To hold 
differently than that would be for us to say that some people are more 
equal than others, that some have more rights--or some have fewer 
rights than other individuals do. And we have been in that sort of 
policy discussion before, and we have always regretted it. We are at 
our best when we are standing for the weakest people amongst us, with 
the most diminished, with the most difficulty. These are the ones we 
want to stand for the most.
  One of the proud moments for me here in our body was to work a bill 
with Senator Kennedy on helping to get more Down's Syndrome children 
here born alive because right now about 90 percent of them are killed 
in utero. We worked on a way to have an adoption registry and an effort 
to recognize that these are valuable people and we should not say that 
because of their difficulty here, they should be regarded as less 
human. That is not a position that upholds the nature and traditions 
and ideals of the United States of America.
  If a subjective judgment of qualify of life is what determines the 
value of an individual or the protections accorded to that individual, 
this has enormous implications for all of us, both for the way we 
conduct our own lives and the way we order our society. If we have a 
fundamental mandate to protect the most vulnerable amongst us, not just 
those who have social or political influence or those who are regarded 
as productive, a reordering of our priorities and our laws becomes 
necessary.
  Ultimately, the debate over Terri Schiavo was not one about States 
rights or medical ethics or end-of-life decisions; it was about whether 
we measure life by a subjective or an objective test. That is the 
fundamental debate point here. Is it a subjective determination? If you 
hit enough of these criteria, you are given full human rights? If you 
have a few of these, too few of these, you are not given full human 
rights? Or is it an objective test? You are a human, of the species, 
you have full human rights in all situations, and you are certainly 
entitled to food and water even if are you in a difficult mental 
condition.
  I believe this is a very important debate, and now we are seeing more 
of the country enter into it, end-of-life issues on the sacredness of 
human life: Does it exist at the end of life or not? Do we have these 
objective or subjective tests?
  Mr. Perrelli--by all accounts a good lawyer--comes out on one point 
of view. He comes out on the point of view that we can look at these in 
subjective ways, representing the client in this who looked at a 
subjective quality-of-life case. Of all of the qualified lawyers in the 
United States--and there are many brilliant lawyers in the United 
States--why would we insist upon putting in as the No. 3 lawyer at the 
Justice Department one who has a point of view that is so stark on this 
and so against the view of most Americans, who would view all human 
life objectively as being beautiful, as being sacred, as being 
something worthy of protection? Now, as people are policy, you put 
someone into the No. 3 position at the Justice Department who holds a 
very radical point of view on this, of all of the qualified lawyers 
that are across the United States. The signal that sends across the 
society is, OK, there is a shift taking place here: we are not going to 
focus on human life as objectively sacred, we are going to view it as 
subjectively needing to meet criteria to protect.
  That may be seen as too stark, but that was the stark question that 
was put forward in the Terri Schiavo case, and that was the stark 
question this nominee decidedly went to one side on. He could have 
stayed out of it, could have not been involved whatsoever. But he 
didn't. He freely and ``freely'' got involved in this case on one side 
in a radical direction that I believe is wrong for the country to take.
  It will be clearly possible that cases involving euthanasia or other 
end-of-life issues may come before the Federal courts during his tenure 
in office. With cases in Oregon, the State of Washington, probably 
being considered in other States, it is highly likely, actually, that 
these cases will come forward. I am deeply concerned that Mr. 
Perrelli's view of this, while so decidedly on one side of it, will not 
be an objective observer or enforcer of current U.S. law. I think that 
is a step back for us protecting and defending the sanctity of basic 
human life.
  This is something I think all of us in our own heart of hearts 
absolutely agree, that human life is sacred, it is sacred at all 
stages, and it is sacred in all places. But now we are presented with a 
policy choice in a person. I would hope that people, as they would look 
at this, would say that is not a direction we should be going, that is 
not a direction we should be tilting in this country as we deal with 
these end-of-life issues coming at a very rapid pace in front of 
legislative bodies at the State level, and I believe they will come 
here, and I believe they will enter their way into the courts.
  For all of these reasons, I really don't believe we should go this 
route. I will be voting against Mr. Perrelli even though I believe him 
to be a qualified individual because of the stark position, the 
negative position he has taken, the subjective view he has expressed 
with his advocacy of the view of human life in this very important 
position.
  I will retain the balance of the time in case other issues are 
raised, if there are other issues that are raised. If there are not 
other issues that are raised, I do not know if we have other people to 
speak on our side. I would be willing to yield back. But if other 
debate points are raised, then I would like to have a few minutes to 
respond.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. If the Senator would yield on that point. I disagree with 
him

[[Page S3053]]

on this. I do not believe Mr. Perrelli is a right-to-die advocate or 
that the positions he represented on behalf of clients was extreme. In 
fact, all seven justices of the Florida Supreme Court, most appointed 
by Republican governors, agreed with Mr. Perrelli's argument. They 
struck down unanimously the law that gave Governor Jeb Bush authority 
over Ms. Schiavo's medical care.
  It is wrong to caricature Mr. Perrelli as a ``right to die'' 
advocate. Mr. Perrelli did not become involved in the Schiavo 
litigation to further any personal or political agenda and did not 
become involved in the litigation when the issue was Ms. Schiavo's 
wishes. In fact, he did not become involved in the case until after the 
Florida State courts had fully and finally litigated the question of 
Ms. Schiavo's wishes and her medical condition. Mr. Perrelli's concern 
was for an unprecedented challenge to the judicial process. He argued 
that the Florida Legislature passed a law that imposed one set of rules 
on Ms. Schiavo and a different set of rules on everyone else in 
Florida. And he was proven right, when the Florida Supreme Court 
unanimously struck down the law taking the decisions out of the hands 
of the family and giving them to the Governor.
  I ask unanimous consent that the long list of those who have written 
to the committee in support of Mr. Perrelli's nomination be printed in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

   Letters of Support for the Nomination of Thomas J. Perrelli To Be 
 Associate Attorney General of the United States (as of March 12, 2009)


                   Current & Former Public Officials

       Bill Lann Lee; Lewis, Feinberg, Lee, Renaker & Jackson, 
     P.C.; former Assistant Attorney General, Civil Rights 
     Division.
       Brad Berenson; Sidley Austin, LLP.
       Christine Gregoire; Governor, State of Washington.
       Paul D. Clement; former Solicitor General.
       State Attorneys General; Douglas F. Gansler, Maryland; 
     Dustin McDaniel, Arkansas; Thurbert Baker, Georgia; Steve 
     Six, Kansas; Jack Conway, Kentucky; James ``Buddy'' Caldwell, 
     Louisiana; Martha Coakley, Massachusetts; Jim Hood, 
     Mississippi; Chris Koster, Missouri; Steve Bullock, Montana; 
     Roy Cooper, North Carolina; Gary King, New Mexico; Drew 
     Edmondson, Oklahoma; Bob Cooper, Tennessee.
       Stephanie A. Scharf; former President, National Association 
     for Women Lawyers (NAWL).


            Law Enforcement & Criminal Justice Organizations

       Federal Law Enforcement Officers Association.
       Fraternal Order of Police.
       Major Cities Chiefs Association.
       National Association of Police Organizations, Inc.
       Police Executive Research Forum.


                           Victims' Advocates

       National Center for Missing and Exploited Children.
       National Center for Victims of Crime.


                       Civil Rights Organizations

       Leadership Conference on Civil Rights.
       National Congress of American Indians.
       Native American Rights Fund.
       Women's Bar Association of the District of Columbia.


                            Other Supporters

       Boys and Girls Clubs of America.
       Oceana, Earthjustice, National Audubon Society, Center for 
     International Environmental Law.

  Mr. LEAHY. This list includes numerous major law enforcement 
organizations that have endorsed Mr. Perrelli's nomination, including 
the National President of the Fraternal Order of Police, the Major 
Cities Chiefs Association, and the National Association of Police 
Organizations. It also includes Paul Clement, who worked for Senator 
Ashcroft and then Attorney General Ashcroft and was appointed by 
President Bush to be Solicitor General.
  Mr. COBURN. Mr. President, I would like to make a very brief 
statement explaining my opposition to the nomination of Thomas 
Perrelli, to be Associate Attorney General at the Department of 
Justice. Like other DOJ nominees, Mr. Perrelli's past advocacy includes 
work affecting obscenity. In particular, he signed a brief attacking 
the Child Protection Restoration and Penalties Enhancement Act of 1990 
for ``criminaliz[ing] the production and distribution of `sexually 
explicit' speech unless the producer and distributor comply with 
burdensome recordkeeping and labeling requirements.'' The brief was 
filed on behalf of Penthouse, the American Library Association, and 
others, whom the brief collectively describes as ``mainstream national 
media entities.''
  To be clear, I recognize and respect that lawyers are entitled to 
represent any client they choose. I do not believe that arguments 
advanced on behalf of a client necessarily reflect the lawyer's views. 
Moreover, I do not believe that examining past advocacy is sufficient 
or appropriate to ascertain the beliefs of a particular nominee, much 
less disqualify him. It does, however, invite legitimate questions 
about what a nominee's personal views are on those same matters.
  Therefore, at his hearing, I asked Mr. Perrelli whether he believed 
that adult obscenity contributed in any way to the exploitation of 
children. He told me that he had not reviewed the science, so I sent 
him four studies to review after the hearing, asking him to respond 
with comments. His response was wholly inadequate. He said:

       I have reviewed the two summaries you forwarded, compiled 
     by a social scientist at the University of Pennsylvania, 
     which indicate her view that exposure to extreme forms of 
     pornography can teach behaviors, including the sexual 
     exploitation of children. It appears there is a great deal of 
     literature on the subject, and without a comprehensive 
     examination of the research, I am hesitant to come to any 
     firm conclusions on the science.

  Even after reviewing certain studies concluding that there is a 
connection between pornography and child exploitation, which Mr. 
Perrelli recognized, the most he could say in response was that he was 
he needed to review even more science before reaching any conclusions. 
Because Mr. Perrelli refused to recognize even the possibility of such 
a connection, or otherwise shed light on his own personal views, I am 
unsure how he will approach issues of obscenity and exploitation at the 
Department. Therefore, I am unable to support Mr. Perrelli's 
nomination.
  Mr. LEAHY. Mr. President, I ask unanimous consent that all debate 
time on the Perrelli nomination be yielded back and that the provisions 
of the previous order governing this nomination remain in effect.
  The PRESIDING OFFICER. Is there objection?
  Mr. BROWNBACK. I object in that I want to raise one additional point. 
And I do believe we should have a recorded vote.
  The PRESIDING OFFICER. Objection is heard. The Senator from Kansas is 
recognized.
  Mr. BROWNBACK. The additional point I would raise on this is that my 
colleague points to the Florida Supreme Court. I note that half of the 
Democrats in this body who returned to vote on the Terri Schiavo case 
voted in favor of Terri Schiavo's family. I think there was a clear 
view on this, and that is my point, when you get a radical position put 
forward that looks at this in a subjective sense.
  With that, Mr. President, I would be willing to yield back time. I do 
want a recorded vote to take place.
  Mr. LEAHY. Mr. President, I ask unanimous consent that all debate 
time on the Perrelli nomination be yielded back and that the provisions 
of the previous order governing this nomination remain in effect.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of Thomas John Perrelli, of Virginia, to be Associate Attorney General 
of the United States?
  The yeas and nays have been ordered, and the clerk will call the 
roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. 
Byrd), the Senator from North Carolina (Mrs. Hagan), and the Senator 
from Massachusetts (Mr. Kennedy) are necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Texas (Mr. Cornyn), the Senator from Nebraska (Mr. Johanns), the 
Senator from Georgia (Mr. Isakson), and the Senator from Florida (Mr. 
Martinez).
  Further, if present and voting, the Senator from Texas (Mr. Cornyn) 
would have voted ``yea.''
  The PRESIDING OFFICER (Mr. Warner.) Are there any other Senators in 
the Chamber desiring to vote?

[[Page S3054]]

  The result was announced--yeas 72, nays 20, as follows:

                       [Rollcall Vote No. 98 Ex.]

                                YEAS--72

     Akaka
     Alexander
     Baucus
     Bayh
     Begich
     Bennet
     Bennett
     Bingaman
     Bond
     Boxer
     Brown
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Conrad
     Corker
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Gillibrand
     Graham
     Gregg
     Harkin
     Hatch
     Inouye
     Johnson
     Kaufman
     Kerry
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Sessions
     Shaheen
     Snowe
     Specter
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Voinovich
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--20

     Barrasso
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Crapo
     DeMint
     Ensign
     Enzi
     Grassley
     Hutchison
     Inhofe
     Risch
     Roberts
     Shelby
     Thune
     Vitter
     Wicker

                             NOT VOTING--7

     Byrd
     Cornyn
     Hagan
     Isakson
     Johanns
     Kennedy
     Martinez
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is considered made and laid upon the table. The President 
will be immediately notified of the Senate's action.

                          ____________________