[Congressional Record Volume 157, Number 107 (Monday, July 18, 2011)]
[Senate]
[Pages S4630-S4634]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Extending Service of FBI Director Robert Mueller
Mr. LEAHY. Mr. President, back on May 12, the President requested
that Congress pass legislation to enable Robert Mueller to continue
serving as Director of the Federal Bureau of Investigation for up to 2
additional years in light of the leadership transition at other key
national security agencies--the Secretary of Defense was leaving, there
was a change in the directorship of the CIA, and so forth--and, of
course, the unique circumstances in
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which we find ourselves as the 10th anniversary of 9/11 approaches in
less than 2 months.
In response to the request of the President, a bipartisan group of
Senators drafted and introduced S. 1103, a bill that would create a
one-time exception to the statute that limits the term of the FBI
Director to 10 years. This bill would allow the term of the incumbent
FBI Director to continue for 2 additional years.
Given the continuing threats to our Nation and the need to provide
continuity and stability in the President's national security team, it
is important that this critical legislation be enacted without delay.
Director Mueller's term expires on August 2, 2011. Of the 12 weeks
between the President's request and the expiration of Director
Mueller's term, 10 have passed. The time for responsible congressional
action has all but elapsed. We are almost in the final hour.
Congressional leaders, including Republican leaders, reacted to the
President's request saying that they supported it. On May 26,
bipartisan legislation providing the one-time statutory exception,
which was drafted by Senator Grassley, was introduced. It was
cosponsored by me, Senator Grassley, and the chair and vice chair of
the Senate Select Committee on Intelligence, Senator Feinstein and
Senator Chambliss.
The Judiciary Committee moved quickly to consider this legislation
and report it to the full Senate. We proceeded at Senator Grassley's
request to a prompt hearing on June 8. I listed the legislation on the
committee's agenda for action on June 9. It was held over for another
week. Finally on June 16, the committee met, debated the matter, and
reported the bill with an amendment to clarify its constitutionality.
On June 21, Senate Report 112-23 was filed regarding the bill. We have
been trying to reach an agreement to consider the bill for more than a
month, but Republican objections have stalled this effort.
On June 29, my statement to the Senate warned that we would have only
a few short weeks left this month to complete action and for the House
to act. We should be acting responsibly and expeditiously. I have
worked diligently in a bipartisan way with Senator Grassley in order to
prevent a lapse in the term of the Director of the FBI. The bill enjoys
the strong support of law enforcement groups, including the National
Association of Police Organizations, the National Fraternal Order of
Police, the International Association of Chiefs of Police, the Police
Executive Research Forum, the Major County Sheriffs' Association, the
National Native American Law Enforcement Association, and the FBI
National Academy Associates. They have all supported it.
We must act on this bill without further, unnecessary delays. The
Senate must take it up, consider it and pass it, and then the House
will need to consider and pass the bill before the President has the
opportunity to sign it. Each of these steps must be completed prior to
the expiration of the Director's current 10-year term on August 2,
2011. There is no time to waste.
All Senate Democrats have been prepared to take up and pass this
extension bill for weeks. There is no good reason for delay. At first
it was reportedly Senator Coburn who was holding up consideration of
the bill, then Senator DeMint, and now apparently it is an objection by
Senator Paul of Kentucky that is preventing the Senate from proceeding.
I find it hard to understand why we would hold up a piece of
legislation like this. This sort of delay is inexplicable and
inexcusable.
In order to accomplish our goal, I have even been willing to proceed
along the lines of an alternative approach demanded by Senator Coburn.
That approach is based on a constitutional problem that does not exist.
The bill reported by the Senate Judiciary Committee is an extension of
a term limit that Congress imposed on the service of the Director of
the FBI. As set forth in the committee report on the extension bill,
and as reaffirmed in a June 20, 2011, memorandum opinion by the Office
of Legal Counsel, the bill reported by a bipartisan majority of the
Senate Judiciary Committee to the Senate is constitutionally sound and
a proper response by Congress to the President's request. Nonetheless,
I was prepared to proceed using Senator Coburn's language instead of
Senator Grassley's and mine, so long as one further problem was
removed. Specifically, the major problem with Senator Coburn's approach
is that it would necessitate the renomination of Director Mueller, and
then his reconsideration and reconfirmation by the Senate after
enactment of Senator Coburn's alternative bill--and all before August
2.
On June 29, I warned that this was an additional, unnecessary and
possibly dangerous complication. I do not want Americans to approach
the 10th anniversary of 9/11 without an FBI Director in office. At the
markup of this bill in our Judiciary Committee, I was assured by the
Senator from Oklahoma that he would get unanimous consent to do all the
short time agreements to get the bill passed, get his amendment passed,
get it through the House and back, and get Director Mueller confirmed
with a 2-hour time agreement. If we did all of that, it would not be
the best of solutions, but it would be better than what we have now.
Now we have the distractions from Director Mueller that have been
created by these extended proceedings, which have been damaging enough.
To require his renomination and then allow it to be held hostage or
used as leverage, as so many of President Obama's nominations have
been, seemed to me a risk that was better avoided. I did not want the
extension of Director Mueller's service leading the FBI to fall victim
to the same objections that have obstructed Senate action on other
important Presidential nominations and appointments. Unfortunately, as
I had warned, that is precisely what has happened in this case.
I have spoken often about the unnecessary and inexcusable delays on
judicial nominations. Even consensus nominees have faced long delays
before Senate Republicans would allow a vote. Since President Obama was
elected, we have had to overcome two filibusters on two circuit court
nominees who were reported unanimously by the committee. These judges--
Judge Barbara Keenan of the Fourth Circuit and Judge Denny Chin of the
Second Circuit--were then confirmed unanimously once the filibusters
were brought to an end. There are currently 17 judicial nominees who
were reported unanimously by all Republicans and Democrats on the
Judiciary Committee and yet are stuck on the Senate Executive Calendar
because Senate Republicans will not consent to vote on them. These are
consensus nominations that should not have been delayed while the
Federal courts are experiencing a judicial vacancies crisis.
This pattern of delay and obstruction has not been confined to
judges. President Obama's executive nominations have been subjected to
the same unfair treatment. The first five U.S. attorneys appointed by
President Obama were delayed more than 2 months for no good reason in
the summer of 2009. These are the top Federal law enforcement officers
in those districts and yet it took from June 4 to August 7 before
Senate Republicans would consent to their confirmations. They were then
confirmed unanimously. The Chairman of the United States Sentencing
Commission was similarly delayed unnecessarily for almost 6 months,
from May 7 until October 21, 2009. He, too, was ultimately confirmed
without opposition, but after needless delay.
Among a slew of other troublesome examples are these: One Republican
Senator objected to a nominee to serve on the Federal Reserve Board of
Governors because, according to that Senator, the nominee lacked the
necessary qualifications. The nominee was a Nobel Prize winner and MIT
economics professor. Another Republican Senator is blocking the
confirmation of two SEC Commissioners until he extracts action from the
SEC related to a case against the Stanford Financial Group. A group of
Senate Republicans have sent a letter to President Obama vowing to
oppose any nominee to be Director of the Consumer Financial Protection
Bureau. Republican Senators are vowing to block President Obama's
nominee to serve as the Secretary of Commerce.
In a particularly illustrative case, one Republican Senator lifted
his hold on the nomination of the Director of the United States Fish
and Wildlife Service only after the administration acceded to his
demands and issued 15
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offshore oil drilling permits. Shortly thereafter, another Republican
Senator placed a hold on the very same nomination to force the Interior
Department to release documents on the Department's ``wild lands''
policy. It did not end there. When that dispute was resolved, a third
Republican Senator reportedly placed a hold on the nominee, demanding a
review of the protected status of wolves. That nominee has still not
been confirmed.
Regrettably, Senate Republicans have ratcheted up the partisanship,
limiting the cooperation that used to allow nominations to move forward
more quickly. That hostage-taking should not affect this critical term
extension for the head of the FBI, but it has. Another important
nomination is being subjected to holds and delays. Another well-
qualified national security nominee is being used as leverage by the
Republican Senate minority to extract other unrelated concessions. That
is what Senator Coburn's alternative plan invited and that is what is
happening with Senator Paul's objection to proceeding.
Just recently, we finally broke through months of obstruction of the
Deputy Attorney General and the Assistant Attorney General for National
Security, key national security related nominations. In May, Senate
Republicans filibustered for the first time in American history the
nomination of the Deputy Attorney General of the United States. The
nomination of the Assistant Attorney General for the National Security
Division at the Department of Justice was subjected to similar,
inexcusable delay. That nominee was approved unanimously by the Senate
Judiciary Committee and unanimously by the Senate Select Committee on
Intelligence, and ultimately approved unanimously by the Senate. But
that nomination, approved unanimously all along the way, took 15 weeks.
It took more than a month just to schedule the Senate vote after the
nomination was reported unanimously by two Senate committees. I warned
on June 29 that we have no guarantee that the President's nomination of
an FBI Director would be treated any differently. Regrettably, that has
become true. I wish I had been wrong, but unfortunately the same kinds
of delays and obstructions for the sake of delays and obstructions have
occurred.
Senate Republicans have known since we began consideration of the
President's request to extend the FBI Director's term that his plan
could not be considered a viable alternative unless there was an
agreement from Senate Republicans to ensure that the Senate would
complete its work and have the FBI Director in place at the end of the
summer. That agreement would take the form of a unanimous consent
agreement in the Senate, entered into by all Senators, and locked in,
on the Record, so that it could not be changed without unanimous
consent. That has not occurred. Senator Coburn was unable to convince
his leadership and the Republican caucus to agree. That was the only
way to ensure Senate action on a nomination before August 2.
To complete action in accordance with Senator Coburn's alternative
plan would mean not only passing legislation through both the Senate
and House, but the Senate also receiving, considering and confirming
the renomination of Director Mueller. I was chairman of the Judiciary
Committee back in 2001 when the Senate considered and confirmed
Director Mueller's initial nomination within 2 weeks. I worked hard to
make that happen. I predicted in June that given the current practices
of Senate Republicans, and their unwillingness to agree on expedited
treatment for President Obama's nominations, it was foolhardy to think
that all Senate Republicans would cooperate. They have not. There has
already been a shifting series of Republican holds over the last month.
The bill was reported over 1 month ago and action has been stymied by
Republican objections every since. Senate Republicans have simply
refused to agree to proceed and now there is no time for a complicated
two phase procedure. We need to pass the necessary statutory authority
to allow Director Mueller to continue without further delay.
As I have said, all Senate Democrats are prepared to take up and pass
this extension bill, and send it to the House of Representatives for it
to take final action before August 2. That is what we should be doing.
We should do that now. There is no good reason for delay. All that is
lacking is Senate Republicans' consent.
Virtually everybody that I have heard from in the Senate says that
Director Mueller is the right person to lead the FBI at this critical
time. Now is not a time--2 months before the anniversary of 9/11--to
have somebody new on the job. I hope we will take up the bill soon. I
wish we had done it at the time I urged Senators to.
I do applaud the Democratic side of the aisle for saying there would
be no objections on our side to moving forward to this legislation so
that we can extend for 2 years the term of Robert Mueller. I also
congratulate and thank Director Mueller and his wife for being willing
to put on hold their plans for retirement for those 2 years for the
good of the country.
Given the continuing threat to our Nation, especially with the 10th
anniversary of the September 11, 2001, attacks approaching, and the
need to provide continuity and stability on the President's national
security team, it is important that we respond to the President's
request and enact this necessary legislation swiftly. The incumbent FBI
Director's term otherwise expires on August 2, 2011. I hope cooler
heads will prevail, and I urge the Senate to take up this critical
legislation and pass it without further delay.
(Mr. MANCHIN assumed the Chair.)
Mrs. GILLIBRAND. Mr. President, today I am pleased to offer my strong
support to the nomination of James Paul Oetken to serve on the U.S.
District Court for the Southern District of New York. In Mr. Oetken,
President Obama has sent to the Senate a nominee who we all should be
proud to support.
J. Paul Oetken is a brilliant lawyer with a remarkable level of
accomplishment. A graduate of the University of Iowa, where he received
his bachelor of arts degree with highest distinction, and Yale Law
School, where he received his juris doctorate, Mr. Oetken has built a
successful career spanning the public and private sectors.
During the Clinton Administration, he served as an attorney-adviser
at the U.S. Justice Department's Office of Legal Counsel and at the
White House as associate counsel to the President. Prior to that, he
clerked for three distinguished Federal judges, including U.S. Supreme
Court Justice Harry Blackmun.
He currently serves as senior vice president and associate general
counsel at Cablevision Systems Corporation, a New York Company,
following several years in private practice.
Throughout his career, J. Paul Oetken has demonstrated a strong
commitment to public service and civil rights, especially for gay and
lesbian Americans. He has worked pro bono on amicus briefs defending
the rights of LGBT Americans against laws that discriminate based on an
individual's sexual orientation.
Mr. Oetken is the first openly gay man to be nominated to serve on
the U.S. district court, and if confirmed, will be only the second
openly gay individual serving in a U.S. district court or circuit court
of appeals.
I firmly believe that the American people will be best served by a
Federal judiciary that reflects our diversity as a nation, broadening
the range of perspectives and experiences represented on the Federal
bench. J. Paul Oetken will bring a strong intellect and commitment to
justice, but also the diversity of experience that is currently lacking
in our Federal courts. It is for that reason that I particularly want
to applaud the President for submitting this nomination to the Senate.
J. Paul Oetken was unanimously favorably reported out of the Senate
Judiciary Committee, and it is rare that we see a nominee come to the
Senate floor with that kind of bipartisan support. To date, there are
still 90 judicial vacancies in article III Courts, and 53 pending
nominations that still need to be acted on by the full Senate. This is
simply unacceptable. It is my hope that more of President Obama's
highly qualified nominees will be reported out of committee and receive
an up-or-down vote on the Senate floor.
J. Paul Oetken has the experience, education, and commitment to the
rule of law and equal rights to be an outstanding Federal judge. He
received a
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unanimous rating of ``qualified'' by the American Bar Association
Standing Committee on the Federal Judiciary and I am confident that if
confirmed, he will be an excellent fit for the U.S. District Court for
the Southern District of New York. I urge my colleagues to join me in
voting yes on this nomination.
Mr. COONS. Mr. President, it is with great pleasure that I speak
today on behalf of J. Paul Oetken's nomination to be U.S. District
Judge for the Southern District of New York. Mr. Oetken and I knew each
other while we were law students at Yale, and I have followed his
career with great interest since then. Mr. Oetken is, in my view, a
strikingly intelligent man. His varied career--in private practice,
with Jenner & Block and Debevoise & Plimpton; in the public sector with
a number of admirable clerkships, culminating with a Supreme Court
clerkship for Justice Blackmun; with the Office of Legal Counsel and
the White House Counsel's Office; and, now, in the business world,
where he is vice president and associate general counsel for
Cablevision--demonstrates a searching intellect and great capability.
Mr. Oetken possesses a unique combination of perspectives and an
exceptional series of qualifications. Given Mr. Oetken's obvious talent
and broad experience, I am confident he will make a great Federal
judge. In my view, it is an added and important bonus that, as the
first openly gay man confirmed to the Federal bench, his service will
also move us closer to full equality in our Nation. His confirmation
will inspire future judges, lawyers and litigants with the knowledge
that, for gay, lesbian, bisexual, and transgendered Americans, it does
get better in our Nation's long journey to inclusion and justice.
Mr. LEAHY. Have the yeas and nays been ordered on the nomination?
The PRESIDING OFFICER. They have not.
Mr. LEAHY. I ask for the yeas and nays on the nomination.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The question is, Shall the Senate advise and consent to the
nomination of J. Paul Oetken, of New York, to be United States District
Judge for the Southern District of New York?
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from North Carolina (Mrs.
Hagan) is necessarily absent.
Mr. KYL. The following Senators are necessarily absent: the Senator
from Oklahoma (Mr. Inhofe), the Senator from Alaska (Ms. Murkowski),
the Senator from Kentucky (Mr. Paul), the Senator from Florida (Mr.
Rubio), the Senator from Pennsylvania (Mr. Toomey), and the Senator
from Louisiana (Mr. Vitter).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 80, nays 13, as follows:
[Rollcall Vote No. 112 Ex.]
YEAS--80
Akaka
Alexander
Ayotte
Barrasso
Baucus
Begich
Bennet
Bingaman
Blumenthal
Boxer
Brown (MA)
Brown (OH)
Burr
Cantwell
Cardin
Carper
Casey
Chambliss
Coats
Coburn
Collins
Conrad
Coons
Corker
Cornyn
Durbin
Enzi
Feinstein
Franken
Gillibrand
Graham
Grassley
Harkin
Heller
Hoeven
Inouye
Isakson
Johanns
Johnson (SD)
Johnson (WI)
Kerry
Kirk
Klobuchar
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lugar
Manchin
McCain
McCaskill
Menendez
Merkley
Mikulski
Murray
Nelson (NE)
Nelson (FL)
Portman
Pryor
Reed
Reid
Rockefeller
Sanders
Schumer
Sessions
Shaheen
Shelby
Snowe
Stabenow
Tester
Thune
Udall (CO)
Udall (NM)
Warner
Webb
Whitehouse
Wyden
NAYS--13
Blunt
Boozman
Cochran
Crapo
DeMint
Hatch
Hutchison
Lee
McConnell
Moran
Risch
Roberts
Wicker
NOT VOTING--7
Hagan
Inhofe
Murkowski
Paul
Rubio
Toomey
Vitter
The nomination was confirmed.
The PRESIDING OFFICER. Under the previous order, the motion to
reconsider shall be considered made and laid upon the table, and the
President shall be immediately notified of the Senate's action.
____________________