[Congressional Record (Bound Edition), Volume 155 (2009), Part 6] [Senate] [Pages 7166-7169] [From the U.S. Government Publishing Office, www.gpo.gov]NOMINATION OF THOMAS JOHN PERRELLI TO BE ASSOCIATE ATTORNEY GENERAL The bill clerk read the nomination of Thomas John Perrelli, of Virginia, to be Associate Attorney General. The PRESIDING OFFICER. The Senator from Vermont is recognized. Mr. LEAHY. Mr. President, what is the agreement on the Perrelli nomination? The PRESIDING OFFICER. There is to be 90 minutes of debate, evenly divided. Mr. LEAHY. Mr. President, I am only going to speak for 2 or 3 minutes. I have had a number of Senators, both Republican Senators and Democratic Senators, ask if there is a possibility of this to be a voice vote. A number of them have airplanes to catch. I mention that for Senators on both sides of the aisle. I am perfectly willing at some appropriate time to yield back all our time and have a voice vote on President Obama's nomination of Thomas J. Perrelli to be the Associate Attorney General, the number three position at the Justice Department. He is a superbly qualified veteran of the Department of Justice who has chosen to leave a lucrative private practice to return to public service. This nomination was reported out of the Judiciary Committee one week ago by a strong, bipartisan vote of 17-1. I thank Senator Specter, Senator Hatch, Senator Kyl, Senator Sessions, Senator Graham and Senator Cornyn for their support of this important nomination. Given Tom Perrelli's background and qualifications, this strong support is no surprise. He is the managing partner of the Washington, D.C. office of Jenner & Block. Before that he held important posts at the Justice Department, earning a reputation for independence and integrity, as well as the respect of career lawyers at the Department. Mr. Perrelli joined the Justice Department in 1997 as Counsel to the Attorney General. In that role, Mr. Perrelli assisted the Attorney General in overseeing the civil litigation components of the Department of Justice, and also worked on a wide variety of special projects, including professional responsibility issues for Department attorneys, and law enforcement in Indian Country. From 1999 to 2001, Mr. Perrelli served as Deputy Assistant Attorney General in the Civil Division, supervising the Federal Programs Branch. That branch defends Federal agencies in important constitutional, regulatory, national security, personnel and other litigation. In addition, he played a leading role on significant policy issues ranging from medical records privacy, the use of adjusted figures in the census to Indian gaming, and social security litigation. A Phi Beta Kappa graduate from Brown University and graduate of Harvard Law School where he served as the Managing Editor of the Harvard Law Review, Mr. Perrelli has demonstrated throughout his years in Government that he understands that the role of the Department of Justice is to be the people's lawyer, with first loyalty to the Constitution and the laws of the United States. He clerked for Judge Royce Lamberth, a no nonsense judge. In private practice, first as an associate at Jenner & Block from 1992 to 1997 and then, again, from 2001 to the present where he became a partner and then the managing partner of its well-respected Washington office, he is recognized as an outstanding litigator and [[Page 7167]] manager. He will need all those skills to call on all his experience in the challenging work ahead. Numerous major law enforcement organizations have endorsed Mr. Perrelli's nomination, including the National President of the Fraternal Order of Police, the Major Cities Chiefs Association, and the National Association of Police Organizations. Paul Clement, who worked for Senator Ashcroft and then Attorney General Ashcroft and was appointed by President Bush to be Solicitor General, wrote that career professionals at the Department who had worked with Mr. Perrelli ``held him in uniformly high regard'' and that Mr. Perrelli's ``prior service in the Department should prepare [him] to be a particularly effective Associate Attorney General.'' He also described Mr. Perrelli as ``an incredibly skilled lawyer'' whose ``skills would serve both Tom and the Department very well if he is confirmed as the Associate Attorney General.'' I urge the Senate to confirm Tom Perrelli to the critical post for which President Obama has nominated him. I look forward to congratulating him, his wife Kristine and their two sons, James and Alexander on his confirmation. I will withhold the remainder of my time. Before I do that, I know the floor staff on both parties are seeing whether it is possible to shorten the time. If it is--I am stuck here this afternoon, but for those Senators who are trying to grab a flight out of here, it would be good to let them know. I retain the remainder of my time. I see a distinguished former member of our committee, the Senator from Kansas, on the floor. I retain the remainder of my time and yield the floor. The PRESIDING OFFICER. The Senator from Kansas is recognized. Mr. BROWNBACK. Mr. President, I rise to speak on the case of Mr. Perrelli, nominated to be Associate Attorney General. I rise to speak in opposition to the nomination. I will not be long, but I think there is an important policy issue that needs to be discussed. I would be prepared to yield back time after that point in time. I do not know if we have other people who desire to speak, so Members could move on about their busy day. I do think we have an important discussion here. I have no doubt of the qualifications of Mr. Perrelli to be Associate Attorney General. I think from what the chairman has stated--and I have no reason to dispute what the chairman has stated about the qualifications of Mr. Perrelli. I think they are good. I do not ascribe bad motives whatsoever to him or anybody. But I think there is a very important policy discussion that needs to take place here, with an opportunity to vote, before we put this individual third in command of the Justice Department, to oversee management of the Department's day-to-day operations, including formulating departmental policies. Concerns have been raised with regard to Mr. Perrelli's nomination to be Associate Attorney General primarily due to his pro bono representation of Terri Schiavo's husband, Michael Schiavo, in his effort to allow the starvation to take place, and the dehydration, of his wife. The death that took place several years ago captured the discussion and the thoughts in the country about issues about the quality of life and whether we protect life that is in a diminished qualitative state. It was a tough discussion. It was a tough debate. I was here and involved with it, as were a number of other individuals. It was one that went back and forth for some period of time. Terri Schiavo, as I might remind a number of individuals, was in a very difficult mental condition. Her husband was desiring to withhold food and water from Terri Schiavo. The family members of Terri Schiavo: No, we should not do this. We should allow her to continue to live. Food, water--provide those items to her. It pulled back and forth on people. And the fundamental root question involved in it is, Do we put a subjective value on human life or is all human life sacred, per se, in an objective sense? Because it is human life, is it sacred, per se, or is there some sort of threshold issue we should be considering on whether we protect human life to the degree fully that we can and certainly on the issues of providing food and water? That was kind of the policy discussion and that was the conundrum we were in as a country because people could see both sides of this issue and say: Gosh, she is in a difficult spot as an individual. Her husband says: Let's withhold food and water. The family says: No. And the country was brought into the discussion, the debate, as was this body. Mr. Perrelli was pro bono, representing for free, Michael Schiavo, in this case, who was the primary proponent to withhold food and water for Terri Schiavo. I think before we put a person who took that position-- he did this for free--into the No. 3 position at the Justice Department of the United States, we should discuss that because people are policy and what they view and what they stand for does find its way into policy apparatus for the United States of America. And this is a key issue for us. I want to put it very clearly. While there is a lot of emotion surrounding this, there is a fundamental policy question, as I mentioned a bit earlier, about this, and that is the basic issue of, do we view human life sacred, per se, or does the dignity that we treat individuals with depend on their physical or mental status as human beings? And we shouldn't get around the starkness of that debate. It is a stark debate, but it is an important one, and I think clearly we should err on the side of saying: If this is a human person, then they are regarded as fully human with all human rights regardless of any sort of diminished physical or mental capacity they might have. To hold differently than that would be for us to say that some people are more equal than others, that some have more rights--or some have fewer rights than other individuals do. And we have been in that sort of policy discussion before, and we have always regretted it. We are at our best when we are standing for the weakest people amongst us, with the most diminished, with the most difficulty. These are the ones we want to stand for the most. One of the proud moments for me here in our body was to work a bill with Senator Kennedy on helping to get more Down's Syndrome children here born alive because right now about 90 percent of them are killed in utero. We worked on a way to have an adoption registry and an effort to recognize that these are valuable people and we should not say that because of their difficulty here, they should be regarded as less human. That is not a position that upholds the nature and traditions and ideals of the United States of America. If a subjective judgment of qualify of life is what determines the value of an individual or the protections accorded to that individual, this has enormous implications for all of us, both for the way we conduct our own lives and the way we order our society. If we have a fundamental mandate to protect the most vulnerable amongst us, not just those who have social or political influence or those who are regarded as productive, a reordering of our priorities and our laws becomes necessary. Ultimately, the debate over Terri Schiavo was not one about States rights or medical ethics or end-of-life decisions; it was about whether we measure life by a subjective or an objective test. That is the fundamental debate point here. Is it a subjective determination? If you hit enough of these criteria, you are given full human rights? If you have a few of these, too few of these, you are not given full human rights? Or is it an objective test? You are a human, of the species, you have full human rights in all situations, and you are certainly entitled to food and water even if are you in a difficult mental condition. I believe this is a very important debate, and now we are seeing more of the country enter into it, end-of-life issues on the sacredness of human life: Does it exist at the end of life or not? Do we have these objective or subjective tests? Mr. Perrelli--by all accounts a good lawyer--comes out on one point of [[Page 7168]] view. He comes out on the point of view that we can look at these in subjective ways, representing the client in this who looked at a subjective quality-of-life case. Of all of the qualified lawyers in the United States--and there are many brilliant lawyers in the United States--why would we insist upon putting in as the No. 3 lawyer at the Justice Department one who has a point of view that is so stark on this and so against the view of most Americans, who would view all human life objectively as being beautiful, as being sacred, as being something worthy of protection? Now, as people are policy, you put someone into the No. 3 position at the Justice Department who holds a very radical point of view on this, of all of the qualified lawyers that are across the United States. The signal that sends across the society is, OK, there is a shift taking place here: we are not going to focus on human life as objectively sacred, we are going to view it as subjectively needing to meet criteria to protect. That may be seen as too stark, but that was the stark question that was put forward in the Terri Schiavo case, and that was the stark question this nominee decidedly went to one side on. He could have stayed out of it, could have not been involved whatsoever. But he didn't. He freely and ``freely'' got involved in this case on one side in a radical direction that I believe is wrong for the country to take. It will be clearly possible that cases involving euthanasia or other end-of-life issues may come before the Federal courts during his tenure in office. With cases in Oregon, the State of Washington, probably being considered in other States, it is highly likely, actually, that these cases will come forward. I am deeply concerned that Mr. Perrelli's view of this, while so decidedly on one side of it, will not be an objective observer or enforcer of current U.S. law. I think that is a step back for us protecting and defending the sanctity of basic human life. This is something I think all of us in our own heart of hearts absolutely agree, that human life is sacred, it is sacred at all stages, and it is sacred in all places. But now we are presented with a policy choice in a person. I would hope that people, as they would look at this, would say that is not a direction we should be going, that is not a direction we should be tilting in this country as we deal with these end-of-life issues coming at a very rapid pace in front of legislative bodies at the State level, and I believe they will come here, and I believe they will enter their way into the courts. For all of these reasons, I really don't believe we should go this route. I will be voting against Mr. Perrelli even though I believe him to be a qualified individual because of the stark position, the negative position he has taken, the subjective view he has expressed with his advocacy of the view of human life in this very important position. I will retain the balance of the time in case other issues are raised, if there are other issues that are raised. If there are not other issues that are raised, I do not know if we have other people to speak on our side. I would be willing to yield back. But if other debate points are raised, then I would like to have a few minutes to respond. The PRESIDING OFFICER. The Senator from Vermont. Mr. LEAHY. If the Senator would yield on that point. I disagree with him on this. I do not believe Mr. Perrelli is a right-to-die advocate or that the positions he represented on behalf of clients was extreme. In fact, all seven justices of the Florida Supreme Court, most appointed by Republican governors, agreed with Mr. Perrelli's argument. They struck down unanimously the law that gave Governor Jeb Bush authority over Ms. Schiavo's medical care. It is wrong to caricature Mr. Perrelli as a ``right to die'' advocate. Mr. Perrelli did not become involved in the Schiavo litigation to further any personal or political agenda and did not become involved in the litigation when the issue was Ms. Schiavo's wishes. In fact, he did not become involved in the case until after the Florida State courts had fully and finally litigated the question of Ms. Schiavo's wishes and her medical condition. Mr. Perrelli's concern was for an unprecedented challenge to the judicial process. He argued that the Florida Legislature passed a law that imposed one set of rules on Ms. Schiavo and a different set of rules on everyone else in Florida. And he was proven right, when the Florida Supreme Court unanimously struck down the law taking the decisions out of the hands of the family and giving them to the Governor. I ask unanimous consent that the long list of those who have written to the committee in support of Mr. Perrelli's nomination be printed in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: Letters of Support for the Nomination of Thomas J. Perrelli To Be Associate Attorney General of the United States (as of March 12, 2009) Current & Former Public Officials Bill Lann Lee; Lewis, Feinberg, Lee, Renaker & Jackson, P.C.; former Assistant Attorney General, Civil Rights Division. Brad Berenson; Sidley Austin, LLP. Christine Gregoire; Governor, State of Washington. Paul D. Clement; former Solicitor General. State Attorneys General; Douglas F. Gansler, Maryland; Dustin McDaniel, Arkansas; Thurbert Baker, Georgia; Steve Six, Kansas; Jack Conway, Kentucky; James ``Buddy'' Caldwell, Louisiana; Martha Coakley, Massachusetts; Jim Hood, Mississippi; Chris Koster, Missouri; Steve Bullock, Montana; Roy Cooper, North Carolina; Gary King, New Mexico; Drew Edmondson, Oklahoma; Bob Cooper, Tennessee. Stephanie A. Scharf; former President, National Association for Women Lawyers (NAWL). Law Enforcement & Criminal Justice Organizations Federal Law Enforcement Officers Association. Fraternal Order of Police. Major Cities Chiefs Association. National Association of Police Organizations, Inc. Police Executive Research Forum. Victims' Advocates National Center for Missing and Exploited Children. National Center for Victims of Crime. Civil Rights Organizations Leadership Conference on Civil Rights. National Congress of American Indians. Native American Rights Fund. Women's Bar Association of the District of Columbia. Other Supporters Boys and Girls Clubs of America. Oceana, Earthjustice, National Audubon Society, Center for International Environmental Law. Mr. LEAHY. This list includes numerous major law enforcement organizations that have endorsed Mr. Perrelli's nomination, including the National President of the Fraternal Order of Police, the Major Cities Chiefs Association, and the National Association of Police Organizations. It also includes Paul Clement, who worked for Senator Ashcroft and then Attorney General Ashcroft and was appointed by President Bush to be Solicitor General. Mr. COBURN. Mr. President, I would like to make a very brief statement explaining my opposition to the nomination of Thomas Perrelli, to be Associate Attorney General at the Department of Justice. Like other DOJ nominees, Mr. Perrelli's past advocacy includes work affecting obscenity. In particular, he signed a brief attacking the Child Protection Restoration and Penalties Enhancement Act of 1990 for ``criminaliz[ing] the production and distribution of `sexually explicit' speech unless the producer and distributor comply with burdensome recordkeeping and labeling requirements.'' The brief was filed on behalf of Penthouse, the American Library Association, and others, whom the brief collectively describes as ``mainstream national media entities.'' To be clear, I recognize and respect that lawyers are entitled to represent any client they choose. I do not believe that arguments advanced on behalf of a client necessarily reflect the lawyer's views. Moreover, I do not believe that examining past advocacy is sufficient or appropriate to ascertain the beliefs of a particular nominee, much less disqualify him. It does, however, invite legitimate questions about what a nominee's personal views are on those same matters. [[Page 7169]] Therefore, at his hearing, I asked Mr. Perrelli whether he believed that adult obscenity contributed in any way to the exploitation of children. He told me that he had not reviewed the science, so I sent him four studies to review after the hearing, asking him to respond with comments. His response was wholly inadequate. He said: I have reviewed the two summaries you forwarded, compiled by a social scientist at the University of Pennsylvania, which indicate her view that exposure to extreme forms of pornography can teach behaviors, including the sexual exploitation of children. It appears there is a great deal of literature on the subject, and without a comprehensive examination of the research, I am hesitant to come to any firm conclusions on the science. Even after reviewing certain studies concluding that there is a connection between pornography and child exploitation, which Mr. Perrelli recognized, the most he could say in response was that he was he needed to review even more science before reaching any conclusions. Because Mr. Perrelli refused to recognize even the possibility of such a connection, or otherwise shed light on his own personal views, I am unsure how he will approach issues of obscenity and exploitation at the Department. Therefore, I am unable to support Mr. Perrelli's nomination. Mr. LEAHY. Mr. President, I ask unanimous consent that all debate time on the Perrelli nomination be yielded back and that the provisions of the previous order governing this nomination remain in effect. The PRESIDING OFFICER. Is there objection? Mr. BROWNBACK. I object in that I want to raise one additional point. And I do believe we should have a recorded vote. The PRESIDING OFFICER. Objection is heard. The Senator from Kansas is recognized. Mr. BROWNBACK. The additional point I would raise on this is that my colleague points to the Florida Supreme Court. I note that half of the Democrats in this body who returned to vote on the Terri Schiavo case voted in favor of Terri Schiavo's family. I think there was a clear view on this, and that is my point, when you get a radical position put forward that looks at this in a subjective sense. With that, Mr. President, I would be willing to yield back time. I do want a recorded vote to take place. Mr. LEAHY. Mr. President, I ask unanimous consent that all debate time on the Perrelli nomination be yielded back and that the provisions of the previous order governing this nomination remain in effect. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. LEAHY. I ask for the yeas and nays. The PRESIDING OFFICER. Is there a sufficient second? There appears to be a sufficient second. The question is, Will the Senate advise and consent to the nomination of Thomas John Perrelli, of Virginia, to be Associate Attorney General of the United States? The yeas and nays have been ordered, and the clerk will call the roll. The legislative clerk called the roll. Mr. DURBIN. I announce that the Senator from West Virginia (Mr. Byrd), the Senator from North Carolina (Mrs. Hagan), and the Senator from Massachusetts (Mr. Kennedy) are necessarily absent. Mr. KYL. The following Senators are necessarily absent: the Senator from Texas (Mr. Cornyn), the Senator from Nebraska (Mr. Johanns), the Senator from Georgia (Mr. Isakson), and the Senator from Florida (Mr. Martinez). Further, if present and voting, the Senator from Texas (Mr. Cornyn) would have voted ``yea.'' The PRESIDING OFFICER (Mr. Warner.) Are there any other Senators in the Chamber desiring to vote? The result was announced--yeas 72, nays 20, as follows: [Rollcall Vote No. 98 Ex.] YEAS--72 Akaka Alexander Baucus Bayh Begich Bennet Bennett Bingaman Bond Boxer Brown Burris Cantwell Cardin Carper Casey Collins Conrad Corker Dodd Dorgan Durbin Feingold Feinstein Gillibrand Graham Gregg Harkin Hatch Inouye Johnson Kaufman Kerry Klobuchar Kohl Kyl Landrieu Lautenberg Leahy Levin Lieberman Lincoln Lugar McCain McCaskill McConnell Menendez Merkley Mikulski Murkowski Murray Nelson (FL) Nelson (NE) Pryor Reed Reid Rockefeller Sanders Schumer Sessions Shaheen Snowe Specter Stabenow Tester Udall (CO) Udall (NM) Voinovich Warner Webb Whitehouse Wyden NAYS--20 Barrasso Brownback Bunning Burr Chambliss Coburn Cochran Crapo DeMint Ensign Enzi Grassley Hutchison Inhofe Risch Roberts Shelby Thune Vitter Wicker NOT VOTING--7 Byrd Cornyn Hagan Isakson Johanns Kennedy Martinez The nomination was confirmed. The PRESIDING OFFICER. Under the previous order, the motion to reconsider is considered made and laid upon the table. The President will be immediately notified of the Senate's action. ____________________