[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

[[Page S4632]]

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

[[Page S4633]]

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.

                          ____________________