[Congressional Record (Bound Edition), Volume 155 (2009), Part 6]
[Senate]
[Pages 7157-7166]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

  NOMINATION OF DAVID W. OGDEN TO BE DEPUTY ATTORNEY GENERAL--Resumed

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider the following nomination, 
which the clerk will report.
  The bill clerk read the nomination of David W. Ogden, of Virginia, to 
be Deputy Attorney General.
  The PRESIDING OFFICER. Under the previous order, there will be 2 
hours of debate equally divided and controlled between the two leaders 
or their designees.
  The Senator from Vermont is recognized.
  Mr. LEAHY. I thank the distinguished presiding officer, a good friend 
from New Mexico.
  Mr. President, before I begin on the David Ogden matter, I have been 
listening to a couple of days of debate not on Ogden but on the budget, 
and I see these crocodile tears. Oh, my gosh, we might eliminate some 
of these special tax breaks given to people making over $250,000 or 
$500,000 or $1 million or $2 million. My heart breaks for them, it 
really does, that they do not get all kinds of special tax breaks, that 
they might be unwilling to actually give money to charity. But then I 
look at the people who make $25,000 or $30,000 a year--people I see 
when I go to mass on Sunday, digging deep and putting money in, a far 
greater percentage of their pocket--and they are not getting any tax 
break for that. They are not getting a tax break. They take a standard 
deduction and they give to charity because it helps the people in this 
country who are in need. These are people who barely have enough money 
to pay for food for their own families, yet they give to charity.
  Let us stop setting up a straw man that somehow the very wealthy 
among us won't give anything to charity if we remove some of their tax 
breaks. You either feel a moral responsibility to give to charity or 
not. It is not because you are doing it to placate the IRS. You do it 
because it is the right thing to do. It is like the story in the Gospel 
of the widow's mite. She gave all she had. And to those wealthy who 
wanted to denigrate what she gave, the Lord said: She gave more than 
you did because she gave all she had.
  So let us not cry, or pull out the world's smallest violin for this. 
People will give to charity if they feel they can and should help the 
least among us, not because they are getting some kind of a tax break.
  Now, this idea that we must have tax breaks for the wealthiest here, 
because, after all, that is how we will pay for the war in Iraq--
remember the last administration saying: We will give huge tax breaks 
and that will pay for the war in Iraq. It gave us the biggest deficit 
in the Nation's history and it precipitated the problems we are having 
today.
  Let us be honest about this. If we give tax breaks, give them to the 
hard-working men and women in this country who are paying Social 
Security taxes, who are getting a weekly, or even hourly salary. They 
are the ones who need the tax breaks. Warren Buffett, one of the 
wealthiest people in the world, has argued against these huge tax 
breaks for people like himself. As he pointed out, he pays a lesser 
percentage of his income to taxes than people cleaning up his office--
to janitors in his office; to secretaries in his office.
  So let us be honest about this. People give to charity if they feel 
it is their moral duty, as my wife and I feel it is to give to charity, 
not because of any tax exemption. Let us be honest about that.
  Now, on the other issue, David Ogden. The Senate is finally ready to 
stop the delaying tactics we have had to put up with and will conclude 
its consideration of President Obama's nomination of David Ogden to be 
Deputy Attorney General. We will finally give the nomination an up-or-
down vote that in the past, when George Bush was President, Senate 
Republicans used to claim was a constitutional right of every nominee.
  After all, all four of President Bush's Deputy Attorney General 
nominees were confirmed without a single dissenting vote by Democrats. 
Notwithstanding that, Senate Republicans have decided to ignore the 
national security challenges this country is facing since the attacks 
of 9/11, and they have returned to their partisan, narrow, ideological, 
and divisive tactics of the 1990s.
  In fact, it was the nomination of Eric Holder to be the Deputy 
Attorney General in 1997 that was the last time a President's choice 
for Deputy Attorney General was held up in the Senate. He, of course, 
was also nominated by a Democrat. Senate Republicans have unfortunately 
returned to their old, tired playbook. They ought to listen to what is 
best for the country, not what they are told to do by radio 
personalities.
  David Ogden will fill the No. 2 position at the Department of 
Justice. As Deputy Attorney General, Mr. Ogden is going to be 
responsible for the day-to-day management of the Justice Department, 
including the Department's critical role in keeping our Nation safe 
from the threat of terrorism. He is highly qualified to do so. He is 
leaving a very lucrative and successful career in private practice, 
taking an enormous cut in pay to return to the Justice Department, 
where he previously served with great distinction, and having 
previously served with such distinction at the Department of Defense.
  Senators Kaufman, Klobuchar, and Durbin made statements yesterday in 
support of the nominee, and I was very pleased to hear these three 
distinguished Senators speak so highly and favorably of him. Senator 
Specter, the Judiciary Committee's ranking member, also spoke yesterday 
in support of Mr. Ogden's nomination, and I was very pleased to hear 
Senator Specter's statement. I thank them all.
  But after that, I was disappointed at the handful of opposition 
statements that parroted outrageous attacks against Mr. Ogden that had 
been launched by some on the extreme right. These attacks from 
extremists distort the record of this excellent lawyer and this good 
man. They begin by ignoring the truth, the whole truth, and then 
mischaracterizing a narrow sliver of his diverse practice as a 
litigator. Those who contend that Mr. Ogden has consistently taken 
positions against laws to protect children are unwilling to tell the 
truth. They chose to ignore Mr. Ogden's record and his confirmation 
testimony.
  What these critics leave out of their caricature is the fact that Mr. 
Ogden aggressively defended the constitutionality of the Child Online 
Protection Act and the Child Pornography Prevention Act of 1996 when he 
previously served at the Justice Department. In private practice, he 
wrote a brief for the American Psychological Association in Maryland v. 
Craig in

[[Page 7158]]

which he argued for the protection of child victims of sexual abuse.
  For those who talk about how one might help out and do charitable 
works, let me tell you about his personal life. He has volunteered his 
time at the Chesapeake Institute, a clinic for sexually abused 
children. I wonder how many of the people who are out here attacking 
him have given their own time to help children, especially sexually 
abused children. As a former prosecutor, I know how much help those 
children need. I ask those who want to willy-nilly attack him: Have you 
ever given your money or your time to help these children the way Mr. 
Ogden has?
  In his testimony, he demonstrated his commitment to the rule of law 
and his abhorrence at child pornography and child abuse. Now, these may 
be inconvenient facts for those who want to perpetuate a fraud, but 
they are the truth. That truth has led the National Center for Missing 
and Exploited Children, the Boys and Girls Clubs of America, and the 
top law enforcement organizations across the country to support this 
nomination and reject the misconceived effort of character 
assassination of this public servant and family man.
  We have the former Deputy Attorney General under President Bush 
supporting him, judge advocates general, the Federal Law Enforcement 
Officers Association, the Fraternal Order of Police, the Major Cities 
Chiefs Association, the National Center for Missing and Exploited 
Children, the National Association of Police Organizations, the 
National District Attorneys Association--an association where I was 
honored to serve as its vice president before I was in the Senate--the 
National Narcotic Officers' Associations' Coalition, the National 
Sheriffs' Association, the Police Executive Research Forum, the 
National Center for Victims of Crime, and many others.
  In fact, Mr. President, I ask unanimous consent to have printed in 
the Record a list of the 53 letters in support the committee received 
on this nomination.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

   Letters of Support for the Nomination of David Ogden To Be Deputy 
      Attorney General of the United States, as of March 11, 2009


                   Current & Former Public Officials

       Beth S. Brinkmann; MorrisonForester, LLP; former Assistant 
     to the Solicitor General. Bill Lann Lee, Lewis, Feinberg, 
     Lee, Renaker & Jackson, P.C.; former Assistant Attorney 
     General, Civil Rights Division. Carolyn B. Lamm; White & 
     Case, LLP; former President, District of Columbia Bar. Carter 
     Phillips; SidleyAustin, LLP; former Assistant to the 
     Solicitor General. Christine Gregoire; Governor, State of 
     Washington. Daniel E. Troy; Senior Vice President and General 
     Counsel, GlaxoSmithKline. Daniel Levin; White & Case, LLP; 
     former Acting Assistant Attorney General, Office of Legal 
     Council; former Assistant United States Attorney. Daniel 
     Price; former Assistant to the President and Department of 
     National Security Advisor for Internal Economic Affairs. 
     David C. Frederick; Kellogg, Huber, Hansen, Todd, Evans, & 
     Figel, PLLC; former Assistant to the Solicitor General. Deval 
     Patrick; Governor, State of Massachusetts. Douglas F. 
     Gansler; Attorney General, State of Maryland. George 
     Terwilliger; White & Case; former United States Attorney for 
     the District of Vermont; former Deputy Attorney General. H. 
     Thomas Wells, Jr.; Maynard, Cooper, & Gale, PC; President of 
     the American Bar Association. James Robinson; Cadwalader, 
     Wickersham, & Taft, LLP; former Assistant Attorney General, 
     Criminal Division. Jamie S. Gorelick; WilmerHale, LLP; former 
     Deputy Attorney General. Janet Reno; former Attorney General.
       Jo Ann Harris; former Assistant Attorney General, Criminal 
     Division. John B. Bellinger, III; former Counsel for National 
     Security Matters, Criminal Division. Kenneth Geller; Mayer 
     Brown, LLP; former Deputy Solicitor General. Larry Thompson; 
     former Deputy Attorney General. Manus M. Cooney; former Chief 
     Counsel, Senate Judiciary Committee. Michael E. Horowitz; 
     Cadwalader, Wickersham, & Taft, LLP; Commissioner of United 
     States Sentencing Commission. Paul T. Cappuccio; Executive 
     Vice President and General Counsel of Time Warner; former 
     Associate Deputy Attorney General. Peter Keisler, 
     SidleyAustin, LLP; former Assistant Attorney General, Civil 
     Division; former Acting Attorney General. Rachel L. Brand; 
     WilmerHale, LLP; Assistant Attorney General for Legal Policy, 
     Department of Justice. Reginald J. Brown; WilmerHale, LLP. 
     Richard Taranto; Farr & Taranto; former Assistant to the 
     Solicitor General. Robert F. Hoyt; former Associate White 
     House Counsel; former General Counsel to the U.S. Treasury 
     Department. Seth Waxman; WilmerHale, LLP; former Solicitor 
     General. Stuart M. Gerson; former Assistant Attorney General, 
     Civil Division. Thomas J. Miller; Attorney General, State of 
     Iowa. Todd Steggerda; WilmerHale, LLP; former Chief Counsel 
     to McCain Presidential Campaign. Todd Zubler; WilmerHale, 
     LLP; former Deputy General Counsel to McCain Presidential 
     Campaign.

  Mr. LEAHY. Mr. President, I might say also that some of the 
Republicans--and they have all been Republicans who have attacked Mr. 
Ogden--are also applying a double standard. Nominees from both 
Republican and Democratic administrations and Senators from both sides 
of the aisle have cautioned against opposing nominees based on their 
legal representations on behalf of clients. Like many others in this 
Chamber, I felt privileged to serve as a prosecutor, but I would hate 
to think I could not have served in that position because, before I was 
a prosecutor, I defended people who were accused of crimes. I was a 
lawyer. I wanted to make sure clients were given equal protection of 
the law. If we start singling out somebody because of their clients, 
what do you do? Do you say to this person: You defended somebody 
charged with murder and therefore you are in favor of murder? Come on, 
let's be honest with where we are.
  In fact, when asked about this point in connection with his own 
nomination, Chief Justice Roberts testified:

       . . . it has not been my general view that I sit in 
     judgment on clients when they come. . . .
       . . . it was my view that lawyers don't stand in the shoes 
     of their clients, and that good lawyers can give advice and 
     argue any side of a case.

  Basically, he took the same position David Ogden did. The difference 
is every single Republican voted for Chief Justice Roberts. Apparently, 
they do not use the same standard for those nominated by Democrats.
  For nominees of Republican Presidents, Republicans demand that their 
clients and their legal representations not be held against nominees. I 
have heard this speech in the Judiciary Committee and on the Senate 
floor by Republicans: You cannot hold their clients against them.
  Whoops; screech; stop--the American people elected Barack Obama as 
President so, suddenly, the Republicans do not want that rule anymore. 
When the American people elect a Democratic President, they do not want 
the same rules; they want a double standard.
  I will give one example. It is probably the example that stands out 
the most. Just over a year ago, every Republican in the Senate voted to 
confirm Michael Mukasey to be Attorney General of the United States. 
They showed no concern that, according to his own statement, one of his 
most significant cases in private practice was his representation of 
Carlin Communications, a company that specialized in what was called 
``Dial-a-Porn'' services.
  When a Republican nominee represents someone for Dial-a-Porn, that is 
just his client. But when a Democratic nominee represents Playboy 
magazine, oh, that is awful. We are so offended. My gosh, we must have 
the most delicate sensibilities in America. Talk about a double 
standard. Where was the outrage then? Where was the debate? Where were 
the concerns? Where were the questions? Oh, wait just a moment, 
something just occurred to me. He was nominated by George W. Bush. Mr. 
Ogden has been nominated by Barack Obama. So when Karl Rove and Rush 
Limbaugh gave the orders that they were supposed to oppose and hold up 
Eric Holder, the first African-American Attorney General in this 
country, they held him up.
  Every one of them voted unanimously for Alberto Gonzales, who was 
finally forced out of office for incompetence. But, oh my goodness, Mr. 
Ogden has been nominated by a Democrat. What a tough double standard.
  If you were going to write something like this for a novel or story, 
your editor would reject it because it seems to be so far-fetched.
  Let's stop the game playing. We had an election last November. If you 
are

[[Page 7159]]

going to apply one standard under a Republican President and a 
different one under a Democratic President, stand up and say: This had 
nothing to do with what he did, it is just that we want a double 
standard. We want a different standard.
  I have served in the Senate for 35 years. I was honored by my 
colleagues on both sides of this aisle earlier this week when I cast my 
13,000th vote. I worked with both Democrats and Republicans and voted 
for nominees of both parties. I like to think I have never applied a 
double standard.
  In Mr. Ogden's case, it is not as though he is only supported by 
Democrats. His nomination received dozens of letters of support, 
drawing strong endorsements from both Democratic and Republican former 
officials and high-ranking veterans of the Justice Department. Larry 
Thompson, a former Deputy Attorney General himself, who is highly 
respected in this body, certainly highly respected by me--a Republican 
nominee--wrote that ``David will be a superb Deputy Attorney General.''
  Chuck Canterbury, the national president of the Fraternal Order of 
Police, wrote that Mr. Ogden ``possesses the leadership and experience 
the Justice Department will need to meet the challenges which lay 
before us.''
  A dozen retired military offices who served as Judge Advocates 
General endorsed Mr. Ogden's nomination. These are military persons who 
have been Judge Advocates General. I have no idea whether they are 
Republicans or Democrats. I just know they served with distinction in 
our Armed Forces to protect the rights of Americans. Here is what they 
wrote, that he is ``a person of wisdom, fairness and integrity, a 
public servant vigilant to protect the national security of the United 
States and a civilian official who values the perspective of uniformed 
lawyers in matters within their particular expertise.''
  Mr. Ogden's nomination was reported by a bipartisan majority of the 
Senate Judiciary Committee 2 weeks ago, having been delayed for several 
weeks. The vote by the Senate Judiciary Committee was 14 to 5. The 
senior Senator from Minnesota who is now on the Senate floor was also 
there. The Assistant Republican leader voted for Mr. Ogden. The ranking 
Republican on the committee voted for Mr. Ogden. The senior Senator 
from South Carolina, who served in the Judge Advocate General Corps, 
voted for him.
  I don't know what more you can say. You have these former high-
ranking officials, both in the Defense Department and the Justice 
Department, of both parties, saying he is the kind of serious lawyer 
and experienced government servant who understands the special role the 
Department of Justice must fill in our democracy.
  We are the Senate. We are supposed to be the conscience of the United 
States. One hundred of us men and women in this body are privileged to 
represent 300 million Americans. We not only represent them, we ought 
to set an example. We ought to say it is time for the slurs and the 
vicious rightwing attacks to stop. The problems and threats confronting 
the country are too serious. The problems and threats confronting this 
country are not problems and threats to just Democrats or just 
Republicans, they are threats to all Americans.
  In the Department of Justice, the Attorney General needs a deputy to 
help run and manage that Department, not for the personal needs of the 
Attorney General but for the needs of 300 million Americans, to help 
protect every one of us.
  Senators should join in voting to confirm this highly qualified 
nominee, this good man, to be Deputy Attorney General of the United 
States. Our country will benefit and we in the Senate will show that we 
actually do know how to do the right thing.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota is recognized.
  Ms. KLOBUCHAR. Mr. President, I want to acknowledge the great 
leadership of Chairman Leahy in his work in getting this very important 
nomination to the floor of the Senate. I rise once again in support of 
David Ogden to be the next Deputy Attorney General of the United States 
of America.
  When I drove in to work today, I heard on the news about new 
developments in the Madoff case, about how some people had thought $50 
billion had been lost in this country, lost to investors, lost to 
people who had nothing left, lost to some of the charities and 
charitable organizations in this country who, during this difficult 
time, are trying to help people in need. They thought it was $50 
billion, but now it was likely $65 billion was lost because of one man, 
one man who committed such fraud--one man. That is what is going on in 
this country today--$65 billion went through the fingers of the 
Securities and Exchange Commission, and now it is being prosecuted 
under the jurisdiction of the Justice Department of the United States.
  Look at the other things going on in this country. We have billions 
of dollars coming out of very important investments in infrastructure 
and broadband and jobs in new energy in this country. But it is an 
unprecedented investment in this country. It is something like $700 
billion or $800 billion going out there, and you have the funds being 
used to help some of the credit markets get going again. We all know 
when you put money like that out on the market, there are going to be 
people who try to do bad things. There are going to be people who will 
try to steal that money, and we need a Justice Department that will 
hold accountable these people who are getting the money; a Justice 
Department that will watch over the taxpayers' money, make sure people 
like Madoff get prosecuted. That is what we need in this country.
  When you see the difficult economic time we are in--people without 
jobs, people who are desperate--it is no surprise oftentimes you see an 
increase in economic crimes. We see that happening today.
  We look at all those factors--Government taxpayer money going out on 
the street, the discovery of cases of people who have been ripping 
people off so long that it is only when economic times get bad that you 
actually see there is embezzlement going on, and then the natural, sad, 
and unfortunate increase in crime because of difficult economic times. 
All that is going on, and that is why I say we need a fully functioning 
Justice Department. That means we need a Deputy Attorney General for 
that Justice Department.
  Yesterday, at our Judiciary Committee, the chairman himself said Eric 
Holder, the Attorney General, is all alone up there. He needs help. It 
is time to move these nominees.
  That is why I question why people at this point would be wanting to 
delay his process, would want to not put someone who is clearly 
qualified to do this job into the Justice Department. We need to fill 
this post right now, and I have full confidence David Ogden is the 
right man at the right time. Why do I know this?
  As I said yesterday, we had a great attorney general's office in 
Minnesota for years and years under both Republican and Democratic 
administrations, and then something happened. A Republican-appointed 
U.S. attorney, Tom Heffelfinger, was a friend of mine, U.S. attorney 
under George Bush I and II, who left of his own accord. When he left he 
found out his name was on a list to be fired. He was replaced with 
someone who didn't have management experience, and that office nearly 
blew up over a 2-year period with one person in charge.
  Now under Attorney General Mukasey we at least have some peace in 
that office; things have improved. But I saw firsthand, when you put 
someone who is not necessarily qualified in a job, when you put someone 
in who is not putting the interests of the State first, I can see what 
happened. So Eric Holder and his deputies and those who work for him 
have a big job on their hands.
  They not only have these white-collar crimes and these enormous 
issues to deal with, they also have a morale issue in the Justice 
Department. And no one, no one says that is not true.
  The way you fix morale in an institution as big as the Justice 
Department

[[Page 7160]]

is you put people in place who have the respect of those who are 
working for them. Look at the numbers. The Department of Justice has 
more than 100,000 employees and a budget exceeding $25 billion.
  Every single Federal law enforcement reports to the Deputy Attorney 
General, the nomination we are considering today, including the FBI, 
the Drug Enforcement Administration, including the Bureau of Prisons, 
and all 93 U.S. Attorneys Offices in this country.
  So what do we have here in David Ogden? Well, we have someone who has 
broad experience in law and in government: went to Harvard Law School, 
clerked for Justice Harry Blackmun--a Minnesotan, may I add--he has 
been in the public sector as a key person in the Justice Department 
under Attorney General Reno. He is someone who also has had private 
sector experience. I personally like that, when someone has been in 
Government and they have also had some private sector experience 
representing private clients as well. He is an openminded and moderate 
lawyer with broad support from lawyers of all political and judicial 
philosophies. So here you have someone with 6 years of leadership in 
the Department when the Department's morale was, by all accounts, good. 
We need to put him back in that Department.
  I know that people on the other side of the aisle--there are a few of 
them--have raised issues about clients he had in the past. I can tell 
you as a lawyer, I think any lawyer--and there are plenty of lawyers in 
this Chamber--has, in fact, represented clients they might not quite 
agree with, and they need to make sure the ethical rules are followed.
  I know as a prosecutor I chose to represent the State. But there was 
no one I admired more than those defense lawyers who were representing 
people who were charged with crimes. I did not choose to do that side, 
but many people did. In our system in the United States of America, 
when someone gets in trouble or someone needs a lawyer, that is your 
job as a lawyer. I think that if we use some kind of standard that we 
are going to throw people out of this Chamber because of clients they 
had represented whom we did not agree with or things they personally 
had done, it would be a very different Chamber.
  I think people should be very careful about charges they make and 
decisions they make about reasons. They can oppose a nomination of 
someone if they want, but it better be for the right reasons. I believe 
we have the right reasons here.
  I know Chairman Leahy just quoted this, but it is very important to 
remember. At his own confirmation hearing, Chief Justice Roberts said:

       The principle that you don't identify the lawyer with the 
     particular views of the client, or the views that the lawyer 
     advances on behalf of a client, is critical to the fair 
     administration of justice.

  He went on to say:

       It was my view that lawyers don't stand in the shoes of 
     their clients, and that good lawyers can give advice and 
     argue any side of a case. It has not been my general view 
     that I sit in judgment on clients when they come to me. I 
     viewed that as the job of the Court when I was a lawyer. And 
     just as someone once said, you know, it's the guilty people 
     who really need a good lawyer, I also view that I don't 
     evaluate whether I as a judge would agree with a particular 
     position when somebody comes to me for what I did, which was 
     provide legal advice and assistance.

  So that is what we are talking about here. We have someone in this 
candidate who has broad support from people who have served in his role 
under both Democratic and Republican Attorneys General. We have someone 
who has the endorsement of the Fraternal Order of Police, a major law 
enforcement organization, and someone who has the endorsement of the 
Center for Missing and Exploited Children.
  While at the Department of Justice, David Ogden also led the 
Government's defense of various antipornography statutes against 
constitutional attack, even arguing forcefully against the positions 
taken by some of those people he had formerly represented.
  For example, while at the Civil Division, David Ogden defended the 
Child Online Protection Act of 1998, which aimed to protect children 
from harmful material on the Internet by requiring pushers of obscene 
material to restrict their sites from access by minors. Under David 
Ogden, the Civil Division of the Justice Department aggressively 
defended that statute.
  While he was head of the Civil Division, David Ogden also defended 
the Child Pornography Prevention Act, which expanded the ban on child 
pornography to cover virtual child pornography. I know this as a 
prosecutor. I know how damaging this is. We had cases where people who 
were preying on children would actually see their images on the 
Internet, would figure out who they are. We had one case where we went 
after someone who met a kid at the mall whom he met on the Internet. 
Then the police looked at all of those images that were on that guy's 
Internet site, and they actually traced them to another kid who did not 
even know her picture was on that Internet site. That is what we are 
talking about--explicit images that appear to depict minors but were 
produced without using any real children, or perhaps using a real child 
and putting them in the imagery, computer-generated imagery. That is 
what David Ogden did, he protected these statutes. He defended these 
statutes, and he will continue to do that at the Department of Justice.
  This strong support for families and children is why David Ogden 
received the National Center for Missing and Exploited Children's 
endorsement, the Boys and Girls Club of America's endorsement, and, of 
course, because of his work with law enforcement, the Fraternal Order 
of Police and the Partnership for a Drug-Free America. You think these 
organizations just come and willy-nilly put their names on an 
endorsement, those organizations, venerable organizations that have 
been here for so long? No. They would not put their name on the 
endorsement of anyone who did not consider the protection of children 
as one of their paramount goals. They know David Ogden will do that. 
They know what I know: David Ogden is a man of integrity and commitment 
to the rule of law. He is someone who will work with our Attorney 
General, Eric Holder, to restore credibility to the Justice Department, 
to restore morale, to make it the kind of place where lawyers, the kids 
coming out of law school, say: That is where I want to work. I want to 
go work for Eric Holder and David Ogden.
  That is what we need restored in our Justice Department. That is why 
we need to move this along the Senate floor.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. I thank the Senator from Minnesota. She is one of the 
newest additions to the Senate Judiciary Committee. She has already 
improved the quality of our committee by just being there.
  Obviously, having former prosecutors on the committee is something I 
have searched for and am happy to have. I appreciate what she has 
brought to us. She was in an era when as a prosecutor she faced things 
I did not have to, such as the online threats to young people, and she 
understands what she is saying.
  I see my good friend from Tennessee on the floor.
  I yield the floor.
  Mrs. FEINSTEIN. Mr. President, I rise to speak in support of the 
nomination of David Ogden to be Deputy Attorney General of the United 
States.
  There is simply no excuse for the delay in confirming Mr. Ogden.
  In 2004, when the 9/11 Commission issued its report on national 
security issues, it specifically recommended that the Deputy Attorney 
General and other national security nominees be confirmed without 
delay.
  Let me quote from the Commission's report:

       Since a catastrophic attack could occur with little or no 
     notice, we should minimize as much as possible the disruption 
     of national security policymaking . . . by accelerating the 
     process for national security appointments.

  The report said the President-elect should make his nomination by 
January 20--which President Obama did, he

[[Page 7161]]

nominated Ogden on January 5--and the Senate should finish considering 
the nominee within 30 days.
  But 66 days later, this nomination is still pending.
  It is time to get Mr. Ogden in his post so the Department of Justice 
can get to the important work ahead.
  David Ogden is an extremely strong nominee, and the Deputy Attorney 
General is a critical official in the Justice Department.
  The Deputy Attorney General is the second-ranking position in the 
Department and plays a large role in national security issues.
  His responsibilities include overseeing the closing of the detention 
facility at Guantanamo Bay and the transfer of the remaining 245 
detainees to new locations, signing FISA intelligence applications, and 
coordinating responses to terrorist attacks.
  He is also responsible for the day-to-day management of the Justice 
Department's more than 100,000 employees and its budget of over $25 
billion. And he manages the criminal division, the FBI, and the over 90 
U.S. attorney's offices nationwide.
  This is a critical position both for the enforcement of our criminal 
laws and for keeping Americans safe from harm.
  President Obama has chosen David Ogden to be the Deputy Attorney 
General, and his record shows why:
  Ogden is a Harvard Law School graduate, and a former clerk to a U.S. 
Supreme Court Justice.
  He is a nationally recognized litigator with over 25 years of 
experience and the cochair of the Government and Regulatory Group at 
one of DC's top law firms.
  Mr. Ogden is also a former Deputy General Counsel and legal counsel 
at the U.S. Department of Defense, where he received the highest 
civilian honor you can receive--the Department of Defense Medal for 
Distinguished Public Service.
  And he is a former Associate Deputy Attorney General, chief of staff 
and counselor to the Attorney General, and Assistant Attorney General 
for the Civil Division at the Department of Justice.
  David Ogden knows the Department of Justice inside and out, and he 
has already proven that he can be an effective leader.
  In fact, over 50 individuals and groups have written in to support 
this nomination.
  Ogden has the endorsements of:

     the Federal Law Enforcement Officers Association, the 
     Fraternal Order of Police, the Major Cities Chiefs 
     Association, the National Association of Police 
     Organizations, the National District Attorneys' Association, 
     the National Narcotic Officers' Association Coalition, the 
     National Sheriffs' Association, the Community Anti-Drug 
     Coalitions for America, the National Center for Missing and 
     Exploited Children, the National Center for Victims of Crime, 
     the Judge Advocates General, the Boys and Girls Club of 
     America, and the Partnership for a Drug-Free America.

  The letters state again and again that Ogden was a standout public 
servant before and that he is highly qualified for the position of 
Deputy Attorney General.
  Let me read just a few remarks from officials who served in 
Republican administrations: Paul Cappuccio, the Associate Deputy 
Attorney General under George H.W. Bush, has written:

       I consider myself a judicial and legal conservative, and 
     believe it is important to appoint high-quality individuals 
     who will uphold the rule of law. In my view, David Ogden is . 
     . . a person of the highest talent, diligence, and integrity. 
     He is, in my view, an excellent pick.

  Larry Thompson, who was Deputy Attorney General under George W. Bush, 
has said that Ogden is ``a person of honor who will, at all times, do 
the right thing for the Department of Justice and our great country.''
  And from Richard Taranto, a high-ranking DOJ lawyer under President 
Reagan: ``The country could not do better.''
  This is very strong support for Ogden. I also hope that my colleagues 
will look closely at his track record as a public servant.
  During the Clinton administration, Ogden proved himself at every 
turn. In addition to being promoted three times to high level 
positions--from Associate Deputy Attorney General to Chief of Staff to 
Assistant Attorney General--he also received the Attorney General's 
Medal in 1999 and the Edmund J. Randolph Award for Outstanding Service 
in 2001. He took the lead on a landmark lawsuit against the cigarette 
companies for lying to the American people about the health risks of 
smoking. Under his guidance, the Civil Division recovered more than 
$1.5 billion in taxpayer money from Government contractors in the 
health care industry and elsewhere that had overbilled the government 
and defrauded the American people. And he vigorously defended the Child 
Pornography Prevention Act of 1996 and the Child Online Protection Act 
of 1998.
  This is a nominee who has proven himself in Government.
  In his confirmation hearing, Ogden also laid out his priorities for 
the future. He said his top priorities will be protecting the national 
security, restoring the rule of law, and restoring nonpartisan law 
enforcement at DOJ.
  He told us that he is committed to making sure that DOJ fights 
financial, mortgage and securities fraud effectively.
  And he pledged in no uncertain terms that if confirmed he would 
``recommend that protecting children and families should be a top 
priority, including through the prosecution of those who violate 
federal obscenity laws.''
  In a 2001 speech at Northwestern Law School, Ogden explained to a 
group of students that a government lawyer's client is not ``the 
President, the Congress, or any agency, although the views of each may 
be extremely relevant,'' his client is the people of the ``United 
States.''
  The American people will be well served by having David Ogden on our 
side. He is an outstanding lawyer and a dedicated public servant.
  It has been 66 days since President Obama nominated David Ogden to be 
the Deputy Attorney General.
  He is a good nominee that should not be held up. Let's let him get to 
work without any further delay.
  Mr. COBURN. Mr. President, I would like to take a minute to briefly 
discuss my opposition to the nomination of David Ogden to be Deputy 
Attorney General of the United States.
  First, however, I would like to take a minute to respond to 
allegations made yesterday by Senator Leahy, who criticized the ``undue 
delay'' of David Ogden's nomination and further stated that ``It was 
disturbing to see that the president's nominee of Mr. Ogden to this 
critical national security post was held up this long by Senate 
Republicans apparently on some kind of a partisan whim.'' There was no 
such delay. I would like to set the record straight on the Senate's 
prompt consideration of this nominee.
  President Obama announced Mr. Ogden's nomination on January 5, but 
the Judiciary Committee did not receive his nomination materials until 
January 23, and he was not officially nominated until January 26. The 
committee promptly held a hearing on his nomination on February 5, just 
13 days after receiving his nomination materials. His hearing record 
was open for written questions for 1 week, until February 12, and Mr. 
Ogden returned his responses on February 18 and 19.
  Following Mr. Ogden's hearing, the Judiciary Committee received an 
unprecedented number of opposition phone calls and letters for a 
Department of Justice nominee. In total, the committee has received 
over 11,000 contacts in opposition to his nomination. Despite this 
overwhelming opposition, the committee promptly voted on Mr. Ogden's 
nomination on February 26.
  I would note that the week prior to the committee's vote on Mr. 
Ogden's nomination was a recess week and was the same week the 
committee received Mr. Ogden's answers to his written questions. Per 
standard practice, the committee could not have voted on him prior to 
February 26 because the record was not complete.
  Rather than hold this controversial nomination over for a week in 
committee, which is any Senator's right, Republicans voted on Mr. 
Ogden's nomination the first time he was listed, on February 26. Five 
of the eight committee Republicans voted against his

[[Page 7162]]

nomination, a strong showing of the concern over Mr. Ogden's 
nomination.
  And now, just 45 days after Mr. Ogden was nominated and despite 
significant opposition, the Senate is poised to vote on his 
confirmation.
  Even giving Democrats the benefit of the doubt and allowing that Mr. 
Ogden's nomination was announced on January 5, 66 days ago, the Senate 
is still acting as quickly as it has on past Deputy Attorney General, 
DAG, nominees. On average since 1980, Senators have been afforded 65 
days to evaluate DAG nominees. Further, Senators were afforded 85 days 
to evaluate the nomination of Larry Thompson, President Bush's first 
DAG nominee and 110 days to evaluate the nomination of Mark Filip. 
Yesterday, Senator Leahy said he had ``urged'' the ``fast and complete 
confirmation'' of Mark Filip and that ``he was.'' If 110 days was a 
``fast'' confirmation, then how is 66 days an ``undue delay?'' In 
short, I take issue with the chairman's characterization of any ``undue 
delay'' on this nomination.
  As a member who shares the concerns of the thousands of individuals 
who have called the committee, I would now like to explain my 
opposition to David Ogden's nomination to be Deputy Attorney General.
  If confirmed, Mr. Ogden would be the second-highest ranking official 
in the Department of Justice. The Deputy Attorney General possesses 
``all the power and authority of the Attorney General, unless any such 
power or authority is required by law to be exercised by the Attorney 
General personally.'' He supervises and directs all organizational 
units of the Department, and aides the Attorney General in developing 
and implementing Departmental policies and programs. To say the least, 
this is an important position.
  America is entitled to the most qualified and judicious person to 
fill such a crucial role. My concern is that David Ogden falls short of 
those expectations.
  Mr. Ogden is undoubtedly a bright and accomplished attorney. Although 
he lacks criminal trial experience that would be helpful in overseeing 
DOJ components such as the Criminal Division, National Security 
Division, U.S. Attorneys' Offices, FBI, and DEA, it appears he is fit 
to serve as Deputy Attorney General.
  My concern is with his views on some of the most important issues 
within the Department's purview. During Mr. Ogden's time as an attorney 
in private practice, he vigorously defended very sensitive and 
controversial issues such as abortion, pornography, the incorporation 
of international law in Constitutional interpretation, and the 
unconstitutionality of the death penalty for minors.
  While I recognize that lawyers should not necessarily be impugned for 
the views of their clients, I am particularly concerned about a pattern 
in Mr. Ogden's representations, namely his work on obscenity and 
pornography litigation. In these cases, Mr. Ogden has consistently 
argued the side of the pornography producers, opposing legislation 
designed to ban child pornography, including the Children's Internet 
Protection Act of 2000 and the Child Protection and Obscenity 
Enforcement Act of 1998.
  At his hearing and in response to written questions, Mr. Ogden 
maintained that the views he advocated in these cases were those of his 
client, and not necessarily his own. While I accept this as plausible, 
I am unsatisfied with Mr. Ogden's unwillingness to answer my specific 
questions about his own personal beliefs. Discerning such personal 
views is crucial to adequately evaluating a nominee who may be charged 
with enforcing the very laws he has opposed in the past.
  It would not have been hard for Mr. Ogden to distance himself from 
some of the extreme views he advanced on behalf of his clients. For 
example, in his brief for the American Psychological Association in 
Casey v. Planned Parenthood, he wrote:

     it is grossly misleading to tell a woman that abortion 
     imposes possible detrimental psychological effects when the 
     risks are negligible in most cases, when the evidence shows 
     that she is more likely to experience feelings of relief and 
     happiness, and when child-birth and child-rearing or adoption 
     may pose concomitant (if not greater) risks of adverse 
     psychological effects for some women depending on their 
     individual circumstances.

  I was disappointed--and somewhat shocked--that, given an opportunity 
to respond to such a statement, the best Mr. Ogden could offer was 
further clarification that he was representing the views of client. 
When pressed for his personal views on the matter, he refused to 
answer. As a result, I am left to guess at what this nominee's views 
are on a matter of critical importance.
  Similarly, I asked Mr. Ogden whether he believes that adult obscenity 
contributes to the sexual exploitation of children in any way. Further, 
I asked him whether he personally believes that adult obscenity 
contributes to the demand for prostitutes, and/or women and children 
who are trafficked into prostitution. His curt response was the same 
for both questions: ``I have not studied this issue and therefore do 
not have a personal belief.'' It is hard to believe that a lawyer who 
devoted significant time and energy throughout his career to 
representing the pornography industry would not have an opinion on 
these issues.
  In response to my question about whether he personally believes there 
is a Federal constitutional right to same-sex marriage, he replied: ``I 
have not studied this issue and therefore have not developed a personal 
view as to whether there is a constitutional right to same-sex 
marriage.'' I simply find it hard to believe that a lawyer of the 
caliber and experience possessed by David Ogden has not thought about 
matters of such widespread public debate.
  In short, although I am impressed by Mr. Ogden's credentials, his 
lack of candor in response to my questions leaves me guessing about the 
approach he will take to these and other sensitive issues at the 
Department of Justice. While former clients or advocacy should not 
necessarily disqualify a lawyer from such positions, David Ogden did 
not do enough to distance himself from controversial views he advocated 
in the past, often against the interests of the government. Therefore, 
Mr. Ogden's performance throughout this nomination process is not 
enough to overcome the unfortunate presumptions created by his record 
of representation. I am unable to support his nomination.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. ALEXANDER. Mr. President, I ask unanimous consent to speak for up 
to 15 minutes as in morning business, with the time charged to the 
Republican side on this debate.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Secretary Geithner

  Mr. ALEXANDER. I thank the Senator from Vermont.
  Mr. President, this morning Secretary Geithner appeared before the 
Budget Committee. He had good humor. He was resilient. He did a good 
job in his testimony. He said, a variety of times, approximately this: 
There would be no economic recovery until we fix the banks and get 
credit flowing again.
  I would like to make a constructive suggestion to our new President, 
who I think is an impressive individual, and to Secretary Geithner, 
because while that may be the goal of the Government, the country is 
not yet persuaded the Government will do that or can do that.
  I asked Secretary Geithner whether he is familiar with a book by 
Ernest May, a longtime professor at the Kennedy School of Government at 
Harvard University. The book is called ``Thinking in Time: The Uses of 
History for Decision Makers.'' The reason I asked Secretary Geithner 
about that was because Ernest May's book ought to be required reading 
for any governmental decision maker. The thesis of the book is that any 
crisis one may be presented--if you are Secretary of Treasury, 
Secretary of Defense--usually has something in history to teach you a 
lesson. For example, if you are the Kennedy administration dealing with 
the Cuban missile crisis in the early 1960s, you may want to look back 
to Hitler's invasion of Rhineland in 1936

[[Page 7163]]

to see whether we should have stopped him then and avoided, perhaps, 
World War II.
  Professor May often says one has to be very careful in thinking about 
the different analogies because you might pick up the wrong analogy and 
the wrong lesson from history. I would like to suggest to the President 
and to the Secretary of Treasury, in the spirit of Professor May's 
book, a couple of analogies from history that I believe would help this 
country deal with the banking crisis, deal with getting credit flowing 
again, and begin to get us back toward the economic recovery that we 
all want for our country and that we very badly need.
  The first example comes from President Franklin Delano Roosevelt, who 
was elected after a deep recession, and maybe even a depression was 
already underway, much worse than today. Mr. President, 5,000 banks had 
failed, and deposits were not insured. What did President Roosevelt do? 
He did one thing: Within 2 days after taking the oath of office, he 
declared a bank holiday, from March 6 to March 10, 1933. Banking 
transactions were suspended across the Nation except for making change. 
He presented Congress with the Emergency Banking Act. The law empowered 
the President, through the Treasury Department, to reopen banks that 
were solvent and assist those that were not. The House passed it after 
40 minutes of debate, and the Senate soon followed. Banks were divided 
into categories. On the Sunday evening before the banks reopened, the 
President addressed the Nation through one of his signature fireside 
chats. The President assured 60 million radio listeners in 1933 that 
the crisis was over and the Nation's banks were secure. By the 
beginning of April, Americans confidently returned $1 billion to the 
banking system; the bank crisis was over. Now, there was a lot more to 
come. That was not the end of the Great Depression, but it was the end 
of the bank crisis, and it came because of swift and bold Presidential 
leadership.
  The lesson I would suggest from that analogy to our nation's history, 
is that President Roosevelt did not try to create the Tennessee Valley 
Authority and the Civilian Conservation Corps and the PWA and the WPA 
and pack the Supreme Court all in the first month of his term of 
office.
  He declared a banking holiday within 2 days after taking office. He 
assured the country that he would fix the problem. He went on the radio 
not for the purpose of talking about the whole range of problems but to 
say, on March 12, 1933: I want to talk for a few minutes to the people 
of the United States about banking. And he explained what was going on. 
He said: We do not want and we will not have another epidemic of bank 
failures. He said: We have provided the machinery to restore our 
financial system.
  The people believed him. They put money back in the banks because the 
American people were looking for Presidential leadership at that 
moment. They knew that the Congress or the Governors or other 
individuals in the country could not fix the bank problem. They knew 
the President had to fix it. When the President took decisive action 
and said he would fix the problem, the country responded and that part 
of the problem was fixed. The bank crisis was over. That is analogy No. 
1.
  Analogy No. 2--and I believe the analogy is closer to today's 
challenge facing President Obama and Secretary Geithner and all of us, 
really--is President Eisenhower's speech in October 1952 in which he 
declared he would end the Korean war. I'd like to read a paragraph from 
that speech because it seems to me so relevant to the kind of 
Presidential leadership that might make a difference today.
  President Eisenhower said:

       The first task of a new administration will be to review 
     and re-examine every course of action open to us with one 
     goal in view: to bring the Korean war to an early and 
     honorable end.

  In these circumstances today, one might say to bring the bank crisis 
and the credit freeze to an early, honorable end.
  President Eisenhower, then a general, not President, said:

       This is my pledge to the American people. For this task a 
     wholly new administration is needed. The reason for this is 
     simple. The old administration cannot be expected to repair 
     what it failed to prevent.

  In other words, the issue in the Presidential election of 1952 was 
change. That is also familiar. It just happened to be the Republicans 
arguing for change at the time.
  Then the President said:

       That job requires a personal trip to Korea. I shall make 
     that trip. Only in that way could I learn how best to serve 
     the American people in the cause of peace. I shall go to 
     Korea.

  On November 29, in the same month he was elected to the Presidency, 
Dwight D. Eisenhower left for Korea.
  The lesson from that instance in history, as Ernest May would have us 
look at, is not that President Eisenhower ended the Korean war by 
Christmas or even by Easter of the next year. The lesson is that he 
told the American people he had one objective in mind. Of all the 
things going on in 1952--inflation and other problems--he focused on 
the one that only a President could deal with. He did it in memorable 
terms. We remember the phrase today: I shall go to Korea. The people 
believed him. They elected him. They relaxed a little bit. The war was 
ended, and the 1950s were a very prosperous time.
  I wish to make this a constructive and, I hope, timely suggestion 
because the President and the Secretary are about to tell us what they 
are going to do about banks. What I would like to suggest is this: they 
don't need to scare us anymore. Back in Tennessee, we are all pretty 
scared. There are a lot of people who are not sure what is going to 
happen with the banks. They don't need to explain the whole problem to 
us anymore. That is not what leaders do. Leaders solve problems. Maybe 
it needs to be explained enough so we grasp it, but basically Americans 
are looking for Presidential leadership to solve the problem.
  I don't think we have to be persuaded that our impressive new 
President is capable of doing more than one thing at a time. He may 
have shown that better than anybody else in history. We have already 
had two summits--one on health and one on fiscal responsibility. I was 
privileged to attend one of the summits. I thought it went very well. 
The President has repealed some of President Bush's orders that he 
didn't agree with on the environment and stem cell research. The 
President has been out to a wind turbine factory in Ohio talking about 
energy. He has persuaded Congress to spend a trillion dollars, over my 
objection, but still he was able to do that in the so-called stimulus 
bill. The new Secretary of Education has worked with the President, and 
he made a fine speech on education the other day. He is doing a lot of 
things. A lot of things need to be done.
  The point is, there is one overriding thing that needs to be done 
today, and that is to fix the banks and get American credit flowing 
again. President Roosevelt didn't create the Tennessee Valley Authority 
and the CCC and the WPA during the bank holiday. He fixed the banks. So 
my respectful suggestion is that our impressive, new President say to 
the American people as soon as he can, in Eisenhower fashion: I will 
fix the banks. I will get credit flowing again. I will take all these 
other important issues facing the country--health care, education, 
energy, on which I am eager to work--and I will make them subordinate 
to that goal. In the spirit of President Eisenhower: I will concentrate 
my full attention on this goal until the job is honorably done; that 
job being, fixing the banks and getting credit flowing again.
  I genuinely believe that if this President did that, if he, in 
effect, made that speech, cleared the decks, gathered around him the 
bright people he has around him and said to the American people: Don't 
worry, a President can do this and I am going to. That statement would 
be the beginning of the economic recovery. Because lack of confidence 
is a big part of our problem. This crisis began with $140 oil prices. 
That was, in the words of FedEx chairman Fred Smith, ``The match that 
lit the fire.'' Then there was the housing subprime mortgage crisis and 
then banking failures.

[[Page 7164]]

  Now, even in strong community banks in Tennessee, we have people who 
are out of work and who can't pay their small business loans or student 
loans. Some of those banks are beginning to have some problems.
  We need to interrupt this train. We only have one person who can do 
it. A Senator cannot do it. The Vice President cannot do it. The 
Secretary of the Treasury cannot do it. No Governor can do it. The 
President can; only he can do it. Even though he may be able to do many 
things well at one time, he needs to do one thing until the job is 
honorably done.
  My respectful suggestion is that Ernest May's book, which reminds 
leaders to think in terms of history, ``Thinking in Time,'' is a 
powerfully apt book for these times. As the Secretary and the President 
and his advisers think about how to present to the American people what 
their plan is, they should remember that a part of it is not only 
developing a strategy. The most important part is persuading at least 
half the people they are right. I believe that means clearing the deck: 
no more summits, no more trips in other directions. Focus attention on 
the problem facing the country until the job is honorably done.
  In Eisenhower fashion, I hope the President will say: I will fix the 
banks. I will get credit flowing again. I will concentrate my attention 
on that job until it is done.
  I yield the floor, suggest the absence of a quorum, and ask unanimous 
consent that the time during the quorum be split evenly between the 
parties.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  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. Without objection, it is so ordered.
  Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that my time 
be charged equally to both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WHITEHOUSE. Mr. President, I come to the floor today to urge my 
colleagues to support the nomination of David Ogden to be our Deputy 
Attorney General. In doing so, I will make a few brief points.
  First, Mr. Ogden is extraordinarily qualified as a lawyer. He has 
served as the Assistant Attorney General in charge of the Civil 
Division, as the Chief of Staff to Attorney General Janet Reno, as the 
Associate Deputy Attorney General, and as Deputy General Counsel over 
at the Department of Defense. He has a distinguished government record.
  He has also been a distinguished lawyer in the private sector, as 
evidenced by his position as cochair of the Government and Regulatory 
Litigation Group at the law firm of WilmerHale. His qualifications for 
this important position as Deputy Attorney General are exemplified by 
the support of former Deputy Attorneys General of both parties.
  Republican Larry Thompson said:

       David is a person of honor who will, at all times, do the 
     right thing for the Department of Justice and our great 
     country. As a citizen, I am extremely grateful that a lawyer 
     of David's caliber again offers himself for public service.

  Democrat Jamie Gorelick wrote that David Ogden ``is a man of unusual 
breadth and depth who is as well prepared to help lead the Department 
as anyone who has come in at the outset of a new administration can 
possibly be.''
  Second, now more than ever, the Department needs a competent Deputy 
Attorney General. I will not go back and review the long sad litany of 
problems--to put it mildly--we saw in the Bush Justice Department. But 
the incompetence and politicization that ran rampant through that 
building must never be repeated.
  The Deputy Attorney General is the second ranking member at the 
Department, and some have compared the position to a chief operating 
officer. We need in that office a person who understands what makes the 
Department of Justice such an important and unique institution, who is 
committed to restoring the Department's honor and integrity, who will 
act independent of political pressure, and who understands the levers 
within the building that need to be pulled to get things done. Based on 
my review of his background and based on his confirmation hearings and 
based on my personal conversations with David, I believe him to be such 
a man.
  I commend Chairman Leahy for his determination to confirm as many 
Department nominees as quickly as possible. The Department has more 
than 100,000 employees and a budget exceeding $25 billion. It is also 
tasked with confronting the most complex and difficult legal challenges 
of our day. The Attorney General must have his leadership team in place 
as quickly as possible. It is March 12 and the Attorney General does 
not have his Deputy confirmed by this body. Despite some very 
unfortunate delay tactics that have taken place, Chairman Leahy is 
doing all he can to move these nominees in a careful, deliberate, and 
expeditious manner. I commend him for that effort and I look forward to 
supporting him in that effort.
  I would also add that as a Senator I have found some of the comments 
that have been made about Mr. Ogden to be very troubling, and certainly 
not the sort of debate I had in mind when I ran to be a Senator. 
Everybody here who is a lawyer knows that a lawyer in private practice 
has a duty--a duty--to zealously advocate--to zealously advocate--the 
position of his client. What makes our system great is that you don't 
have to win a popularity contest as a client before you can get a 
zealous advocate for your position. Every lawyer is under a duty to 
zealously advocate their client's position.
  So to take a lawyer who has served in private practice with great 
distinction and attribute to him personally the views of clients is 
plain dead wrong and strikes at the heart of the attorney-client 
relationship that is the basis of our system of justice. It is a 
terrible mistake to do that, and particularly to exaggerate those 
positions to the point where he has been accused of supporting things 
such as child pornography. It is an appalling misstatement. The major 
organizations that concern themselves with the welfare of children in 
this country support David Ogden. That should put these false claims to 
rest. However, I do very much regret that the level of debate over 
someone such as David Ogden in this historic body has come to a point 
where those sorts of charges are being thrown out, completely without 
factual basis and, in many respects, in violation of what we should as 
Senators understand to be a core principle, which is that a lawyer is 
bound to advocate for his client and to do so does not confer upon the 
lawyer the necessity of agreeing to those views.
  As somebody who spent a good deal of time in public service as a 
lawyer and who has spent some time in private practice as a lawyer as 
well, I can tell my colleagues that one of the reasons people come to 
public service is so they can vindicate the public interest. David, as 
Deputy Attorney General, I have no doubt whatsoever will serve in a way 
that vindicates the public interest, that protects children, that 
protects our country, and that serves the law.
  I appreciate the opportunity to say this, and I yield the floor.
  Mr. President, 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.
  Mr. SPECTER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. Mr. President, I have sought recognition to discuss 
briefly the pending nomination of David Ogden to be Deputy Attorney 
General. I had spoken on the subject in some detail 2 days ago, and my 
comments appear in the Congressional Record. But I wish to summarize my 
views today and also to respond to an issue which has been raised about 
undue delay on Mr.

[[Page 7165]]

Ogden's nomination. There has been no such delay, and I think that is 
conclusively demonstrated on the record.
  President Obama announced Mr. Ogden's nomination on January 5, but 
the Judiciary Committee did not receive the nomination materials until 
January 23, and he was not officially nominated until January 26.
  Then the committee promptly held a hearing on his nomination on 
February 5, 13 days after receiving his nomination materials. His 
hearing record was open for written questions for 1 week, until 
February 12, and Mr. Ogden returned his responses on February 18 and 
19.
  Following Mr. Ogden's hearing, the Judiciary Committee received an 
unprecedented number of opposition calls and letters--over 11,000 
contacts in opposition to the nominee, unprecedented for someone in 
this position. Despite this opposition, the committee promptly voted on 
Mr. Ogden's nomination on February 26.
  I note that the week prior to the committee's vote on Mr. Ogden's 
nomination was a recess week, and it was the same week the committee 
received Mr. Ogden's answers to his written questions. As is the 
standard practice, the committee would not have voted on him prior to 
February 26 because the record was not complete.
  Rather than hold this nominee over for a week in committee, which is 
any Senator's right, Republicans voted on Mr. Ogden's nomination for 
the first time he was listed, on February 26. And now, 45 days after 
Mr. Ogden was nominated, the Senate is poised to vote on his 
nomination.
  Even allowing that Mr. Ogden's nomination was announced on January 
5--66 days ago--the Senate is still acting as quickly as it has on past 
Deputy Attorneys General.
  On average, since 1980, Senators have been afforded 65 days to 
evaluate Deputy Attorney General nominees. Senators were afforded 85 
days to evaluate the nomination of Larry Thompson and 110 days to 
evaluate the nomination of Mark Filip, both nominated by President 
George W. Bush. In fact, we are voting on Mr. Ogden's nomination faster 
than any of President Bush's nominees: Larry Thompson, 85 days; James 
Comey, 68 days; Paul McNulty, 147 days; and Mark Filip, 110 days. I 
believe these facts put to rest any allegation there was any delay.
  I spoke on Wednesday urging my colleagues to move promptly, noting I 
had a call from Attorney General Holder who said he was needed. Not 
having had any top-level people confirmed, I think the Attorney 
General's request is a very valid one. In my position as ranking 
member, I am pushing ahead and trying to get the Ogden nomination voted 
on.
  On Wednesday, I noted the fine academic record and professional 
record and put his resume into the Record, so I need not do that again.
  I noted on Wednesday in some detail the opposition which had been 
raised by a number of organizations--Family Research Council, headed by 
Tony Perkins; Fidelis, a Catholic-based organization; the Eagle Forum; 
and the Alliance Defense Fund--on the positions which Mr. Ogden had 
taken in a number of cases. I also noted the judgments that when Mr. 
Ogden took those positions, he was in an advocacy role and is not to be 
held to those policy positions as if they were his own.
  I noted that the Judiciary Committee is taking a close look at other 
nominees--Elena Kagan, for example--on the issue of whether she 
adequately answered questions. I am meeting with her later today. Her 
nomination is pending. Also, the nomination of Ms. Dawn Johnsen 
involving the issue of her contention that denying a woman's right to 
choose constitutes slavery and a violation of the 13th amendment.
  I believe on balance Mr. Ogden ought to be confirmed, as I said on 
Wednesday, noting the objections, noting the concerns, and contrasting 
them with his academic and professional record. He took advocacy 
positions well recognized within the profession, but that is a lawyer's 
responsibility. He cannot be held to have assumed those positions as 
his own policy.
  We will later today take up the nomination of the Associate Attorney 
General. While I have the floor, I think it appropriate to make some 
comments regarding this nomination.
  Thomas Perrelli is the nominee. He has an outstanding academic 
record: a graduate of Brown University, Phi Beta Kappa and magna cum 
laude, very substantial indicators of academic excellence. Then Harvard 
Law School, again magna cum laude, 1991; managing editor of the Harvard 
Law Review. He clerked for Judge Lamberth in the U.S. District Court 
for the District of Columbia. He has been an associate at Jenner & 
Block; counsel to the Attorney General; Deputy Assistant Attorney 
General; and later a partner in Jenner & Block. He was named to the 
``40 under 40'' list by the National Law Journal; a recipient of the 
Jenner Pro Bono Award; and recognized as one of Lawdragon's 500 ``New 
Stars, New Worlds.''
  Mr. President, I ask unanimous consent to have printed in the Record 
his resume.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                           Thomas J. Perrelli


                       Associate Attorney General

       Birth: 1966, Falls Church, Virginia.
       Residence: Arlington, Virginia.
       Education: A.B., Brown University, magna cum laude, 1988; 
     Phi Beta Kappa, 1987; J.D., Harvard Law School, magna cum 
     laude, 1991; Managing Editor, Harvard Law Review.
       Employment: Law Clerk, Honorable Royce C. Lamberth, U.S. 
     District Court for the District of Columbia, 1991-1992; 
     Associate, Jenner & Block LLP, Washington , DC, 1992-1997; 
     Counsel to the Attorney General (Janet Reno), U.S. Department 
     of Justice, 1997-1999; Deputy Assistant Attorney General, 
     U.S. Department of Justice, Civil Division, 1999-January 
     2001; Unemployed, January 2001-June 2001; Partner, Jenner & 
     Block LLP, Washington, DC, 2001-Present; Managing Partner, 
     Washington, DC office, 2005-Present; Co-Chair, Entertainment 
     and New Media Practice.
       Selected Activities: Named to ``40 under 40,'' National Law 
     Journal, 2005; Recipient, Albert E. Jenner, Jr. Pro Bono 
     Award, Jenner & Block, 2005; Recognized as one of Lawdragon's 
     500 ``New Stars, New Worlds,'' 2006; Named Best Intellectual 
     Property Lawyer in Washington, DC by Washington Business 
     Journal, 2008; Recognized as leading media and entertainment 
     lawyer, Chambers & Partners USA, 2007-2008; Member, American 
     Bar Association.

  Mr. SPECTER. Mr. President, there had been some question raised as to 
Mr. Perrelli's representation of clients in a couple of cases--
including the American Library Association v. Attorney General Reno, 
where he appeared on behalf of a coalition of free speech groups and 
media entities (including Penthouse) arguing that the Child Protection 
Restoration and Penalties Enhancement Act of 1990 criminalized material 
in violation of the first amendment.
  There were a number of letters filed by pro-life organizations, 
including the Pennsylvania Family Institute, International Right to 
Life Federation, Family Research Council, and the National Right to 
Life Committee. We have evaluated those issues closely.
  I questioned Mr. Perrelli in some detail on the position he took in 
the Terri Schiavo case where he claimed the Federal court did not have 
jurisdiction. It seems to me as a legal matter, the State court did not 
have exclusive jurisdiction, that the Federal court could take 
jurisdiction under Federal doctrines. He defended his position saying 
that he was taking an advocate's role, and he thought it was a fair 
argument to make. My own view was that it was a little extreme.
  I think all factors considered, the objections which have been raised 
of Mr. Perrelli as Associate Attorney General turn almost exclusively 
on positions he took as an advocate. I believe his outstanding academic 
and professional record support confirmation.
  Again, we are taking a very close look at all of the nominees but, on 
balance, it seems to me that is the appropriate judgment. Here, again, 
we are almost 2 months into a new administration and the Attorney 
General does not have any upper echelon assistants. These confirmations 
will provide that assistance.
  I think it is fair to note that Mr. Perrelli's nomination was 
supported overwhelmingly in the committee, the same conclusion I came 
to. It was a 17-

[[Page 7166]]

to-1 vote in his favor. Only one Senator voted no and one Senator voted 
to pass. That is showing pretty substantial support.
  I thank the Chair. I note the presence of the distinguished chairman 
of the committee, so I yield the floor to Senator Leahy.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I understand my time has been used. We are 
supposed to vote at 2 p.m. I ask unanimous consent that I be able to 
use the time until 2 o'clock.
  Mr. SPECTER. Mr. President, if Senator Leahy would like my time, he 
is welcome to all of it.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, I thank the distinguished Senator from 
Pennsylvania for his support of both David Ogden and Thomas Perrelli, 
both superbly qualified candidates, both of whom will be confirmed this 
afternoon. I will speak further about Mr. Perrelli after this vote.
  Again, I go back to David Ogden. David Ogden has been strongly 
supported by Republicans and Democrats, those who served in the Bush 
administration and other administrations. I thought it was a scurrilous 
attack on him because he and his firm supported libraries, supported 
perfectly legal publications, and some Republicans saying they could 
not vote for him because of that.
  I note that these same Republicans all voted for Michael Mukasey, a 
fine gentleman, to be Attorney General, who listed as one of his 
primary cases his representation of the TV channel that carries ``Dial-
a-Porn.''
  Now, certainly when a Republican, nominated by a Republican, 
represented Dial-a-Porn, that seems to be wrong; when a Democrat, 
nominated by a Democrat, represents libraries and basically a 
mainstream men's magazine, that is wrong.
  I hope we will avoid in the future such double standards. I see a man 
who has helped children, who has volunteered his time, who has given 
great charity to children, and who has been supported by the Boys and 
Girls Clubs, by the Missing and Exploited Children's groups, by the 
National District Attorneys Association, and by every major law 
enforcement organization.
  So, Mr. President, I know time has expired, and I would ask for the 
yeas and nays on confirmation of the nomination.
  The PRESIDING OFFICER (Mr. Bennet). 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 David W. Ogden, of Virginia, to be Deputy Attorney General?
  The clerk will call the roll.
  The bill 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 Nebraska (Mr. Johanns), the Senator from Texas (Mr. Cornyn), and 
the Senator from Georgia (Mr. Isakson).
  Further, if present and voting, the Senator from Texas (Mr. Cornyn) 
would have voted ``nay.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 65, nays 28, as follows:

                       [Rollcall Vote No. 97 Ex.]

                                YEAS--65

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

                                NAYS--28

     Barrasso
     Bennett
     Brownback
     Bunning
     Burr
     Casey
     Chambliss
     Coburn
     Cochran
     Corker
     Crapo
     DeMint
     Ensign
     Enzi
     Grassley
     Hatch
     Hutchison
     Inhofe
     Martinez
     McConnell
     Murkowski
     Risch
     Roberts
     Sessions
     Shelby
     Thune
     Vitter
     Wicker

                             NOT VOTING--6

     Byrd
     Cornyn
     Hagan
     Isakson
     Johanns
     Kennedy
  The nomination was confirmed.
  The PRESIDING OFFICER. The motion to reconsider is considered made 
and laid on the table, and the President will be informed of the 
Senate's action.

                          ____________________