[Congressional Record (Bound Edition), Volume 156 (2010), Part 13]
[Senate]
[Pages 18608-18611]
[From the U.S. Government Publishing Office, www.gpo.gov]




             UNANIMOUS-CONSENT REQUEST--EXECUTIVE CALENDAR

  Mr. LEAHY. Madam President, in a letter sent yesterday to Senate 
leaders, former Deputy Attorneys General of the United States who 
served in both Republican and Democratic administrations urged the 
Senate to consider the nomination of James Cole to be the Deputy 
Attorney General without further delay.
  The Deputy Attorney General is the No. 2 position at the Department 
of Justice. It is a critical national security and Federal law 
enforcement position. These former officials who served with 
distinction in that post write that the deputy is ``the chief operating 
officer of the Department of Justice, supervising its day-to-day 
operations'' and that ``the deputy is also a key member of the 
President's national security team, a function that has grown in 
importance and complexity in the years since the terror attacks of 
September 11.'' These former Deputy Attorneys General are right. I 
thank them for speaking out to urge the Senate to complete 
consideration of this important nomination.
  I ask unanimous consent that their letter be printed in the Record at 
the end of my statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. LEAHY. Incidentally, the Deputy Attorneys General who served in 
both Republican and Democratic administrations who signed this letter 
were Donald Ayer, Carol Dinkins, Mark Filip, Jamie Gorelick, Philip 
Heymann, Paul McNulty, David Ogden, and Larry Thompson.
  Mr. Cole's nomination has been pending on the Executive Calendar for 
4\1/2\ months, since it was reported favorably by the Judiciary 
Committee in July. I have a hard time remembering any time, in either a 
Democratic or Republican administration, that the Deputy Attorney 
General has been held up like this.
  Those Republican Senators who continue to block us from considering 
this well-qualified nominee should come forward and explain why they 
feel it is justified to continue to leave America without a crucial 
resource we need to combat terrorism and to keep the country safe. 
Instead of doing this anonymously, the Senators ought to step forward 
and say why we cannot confirm this Deputy Attorney General, the No. 2 
law enforcement position for the whole United States of America.
  Today, I will seek unanimous consent for a time agreement to debate 
this nomination and finally have a vote in the full Senate. I have 
alerted the distinguished ranking member of the Judiciary Committee of 
this request. Those who oppose the nomination are free to say why and 
they can vote no, but let's end the stalling.
  You have Senators say that they don't want to vote yes and that they 
don't want to vote no, but that they want to vote maybe. This is what 
is happening now with the nomination for the No. 2 law enforcement 
official of the country.
  Madam President, we were all elected for 6-year terms, with the 
responsibility to vote yes or no in the best interests of the United 
States. Voting maybe does not serve those interests.
  President Obama nominated Jim Cole to be Deputy Attorney General on 
May 24. That was 6\1/2\ months ago. I thank the Judiciary Committee 
ranking member, Senator Sessions, for working with me to schedule a 
hearing

[[Page 18609]]

on the Cole nomination while the committee was preparing for Justice 
Kagan's confirmation hearing.
  The problem was not with the Senator from Alabama. He helped me move 
forward with that hearing in the committee, and I wish we could have 
proceeded in the same spirit in the Senate. As the former Deputy 
Attorneys General wrote, ``Because of the responsibilities of the 
position of Deputy Attorney General, votes on nominations to fill this 
position usually proceed quickly.'' They also note that of the 11 
nominations to fill this position over the last 20 years, from both 
Democratic and Republican Presidents, ``none remained pending for 
longer than 32 days.'' Indeed, all four of the Deputy Attorneys General 
who served under President Bush, three of whom signed the letter we 
received yesterday, were confirmed by the Senate by voice vote an 
average of 21 days after they were reported by the Judiciary Committee. 
In fact, we confirmed President Bush's first nominee to be Deputy 
Attorney General the very same day it was reported by the committee.
  We should treat the nomination of Jim Cole with the same urgency and 
seriousness with which we treated President Bush's nominations of Larry 
Thompson, James Comey, Paul McNulty, and Mark Filip. We should reject 
the strategy of some Senate Republicans of elevating their partisan 
goal to weaken the Obama administration over taking actions to keep us 
safe.
  In November, over 4 months after Mr. Cole responded to written 
questions following his confirmation hearing, only two Senators sent 
him additional followup questions on a topic covered extensively during 
the earlier questioning. Two weeks ago, Mr. Cole promptly answered even 
these additional questions. There is no reason for Republicans to 
continue blocking the Senate's consideration of this nomination.
  Jim Cole served as a career prosecutor at the Justice Department for 
a dozen years and has a well-deserved reputation for fairness, 
integrity, and toughness. He served under both Republican and 
Democratic Presidents. He clearly demonstrated during his confirmation 
hearing months ago that he understands the issues of crime and national 
security that are at the center of the Deputy Attorney General's job.
  The nomination received strong endorsement from Republican and 
Democratic public officials, and from high-ranking veterans of the 
Justice Department, including the letter to the Senate leaders 
yesterday from eight former Deputy Attorneys General who served in the 
administrations of President Reagan, President George H.W. Bush, 
President Clinton, President George W. Bush, as well as the current 
administration. Former Republican Senator Jack Danforth, who worked 
with Jim Cole for more than 15 years, described Mr. Cole to the 
committee as someone without an ideological or political agenda.
  The months of delay of this nomination have been unnecessary, 
debilitating and wrong.

                               Exhibit 1

                                                 December 1, 2010.
     Hon. Harry Reid,
     Senate Majority Leader,
     Washington, DC.
     Hon. Addison Mitchell McConnell,
     Senate Minority Leader,
     Washington, DC.
       Dear Leaders Reid and McConnell: We are a bipartisan group 
     of former Deputy Attorneys General of the United States. We 
     write to urge the expeditious consideration by the Senate of 
     the nomination of James Cole to be Deputy Attorney General.
       The Cole nomination was received by the Senate on May 24, 
     2010, and reported favorably from the Judiciary Committee on 
     July 20, 2010, so the nomination has been pending before the 
     Senate for more than one hundred and twenty days. Because of 
     the responsibilities of the position of Deputy Attorney 
     General, votes on nominations for this position usually 
     proceed quickly. Over the past twenty years, presidents of 
     both parties nominated eleven individuals to serve as Deputy 
     Attorney General. Their nominations were pending on the 
     Senate calendar for an average of twelve days, and none 
     remained pending for longer than thirty-two days. Nine of the 
     eleven nominees were confirmed by voice vote or unanimous 
     consent.
       The position of Deputy Attorney General is an important 
     position in the federal government. The Deputy Attorney 
     General functions as the chief operating officer of the 
     Department of Justice, supervising its day-to-day operations. 
     As such, the Deputy plays a central role in ensuring 
     effective enforcement of federal laws, including laws against 
     mortgage fraud, health care fraud, organized crime and child 
     exploitation. The Deputy is also a key member of the 
     president's national security team, a function that has grown 
     in importance and complexity in the years since the terror 
     attacks of September 11. He or she supervises the work of the 
     Department's National Security Division, and is called upon 
     to make crucial, time sensitive decisions to protect the 
     American people.
       There is a capable individual currently serving as Acting 
     Deputy Attorney General, but it is important to the proper 
     functioning of the Department that there be a confirmed 
     official in this position. Only a Deputy appointed by the 
     President may formally and automatically assume all of the 
     duties of the Attorney General when that Cabinet official is 
     unavailable for one reason or another. And there is at least 
     one critical statutory responsibility that an Acting Deputy 
     cannot perform--signing applications to the Foreign 
     Intelligence Surveillance Court.
       We strongly urge that the Senate vote on the nomination of 
     James Cole as soon as possible.
           Sincerely,
     Donald B. Ayer,
     Carol E. Dinkins,
     Mark R. Filip,
     Jamie S. Gorelick,
     Philip B. Heymann,
     Paul J. McNulty,
     David W. Ogden,
     Larry D. Thompson.

  Mr. LEAHY. At this time--and I note that my colleague from Alabama is 
in the Chamber--I propound the following unanimous-consent request:
  I ask unanimous consent, as if in executive session, that at a time 
to be determined by the majority leader, following consultation with 
the Republican leader, that the Senate proceed to executive session to 
consider Calendar No. 1002, the nomination of James Michael Cole to be 
Deputy Attorney General; that there be 2 hours of debate with respect 
to the nomination, with the time equally divided and controlled between 
the chairman and ranking member of the Judiciary Committee; that upon 
the use or yielding back of such time, the Senate proceed to vote on 
confirmation of the nomination; that upon confirmation, the motion to 
reconsider be considered made and laid upon the table; and that the 
President be immediately notified of the Senate's action, and the 
Senate then resume legislative session.
  The PRESIDING OFFICER. Is there objection?
  Mr. SESSIONS. Madam President, reserving the right to object--and I 
will object--I would first thank my colleague, Senator Leahy, for the 
courtesy as he has moved forward with this. He is a relentless chairman 
pushing for these nominees. I respect his responsibility and his belief 
that this nominee needs to move forward, and, frankly, it is about 
time--we need to fish or cut bait on it. I do not think an indefinite 
delay is good for the country.
  This nomination does have controversy. Most of the nominations the 
President has submitted did clear unanimously in our committee, but 
this nomination resulted in all the Republicans on the committee voting 
against it. But I now understand that our two leaders, Senators Reid 
and McConnell, are working at this moment to try to figure which 
nominees should move before we recess--and hopefully before too many 
days--and perhaps this nominee will be in that group. But until those 
talks are complete, I would object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Vermont.
  Mr. LEAHY. Madam President, I am disappointed. The Republicans are 
saying there is a double standard. All of the Deputy Attorneys General 
nominated by Republican presidents have been confirmed, most by voice 
vote, within a month. This one has waited on the floor for over 4 
months and we still cannot even get a vote. As Senators, we should all 
at least have the courage to vote yes or to vote no. Eventually, we 
have to stop voting maybe. It allows everybody to go home and say: I 
may be here on an issue or I may be there. We are Senators and we must 
have the courage to vote yes or to vote no. We cannot continue to vote 
maybe, especially on the No. 2 law enforcement officer of the United 
States. President

[[Page 18610]]

Bush's first deputy, was confirmed within 24 hours of being reported 
from Committee, while James Cole has waited 6 months for a vote. Voting 
maybe is not a profile in courage in the Senate.
  I yield to the Senator from Maryland.
  The PRESIDING OFFICER. The Senator from Maryland.
  Mr. CARDIN. Madam President, I ask unanimous consent that the recess 
start 2 minutes from now.
  The PRESIDING OFFICER. Is there objection?
  The Senator from Alabama.
  Mr. SESSIONS. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. SESSIONS. Did you say recess in 2 minutes?
  Mr. CARDIN. I would be glad to make that longer. We have an order, as 
I understand it, to recess at 12:34. I wanted to make a brief comment. 
If the Senator would like some time, I have no objection.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. I would ask that the unanimous-consent request allow me 
to have 5 minutes when the Senator finishes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. I certainly have no objection. That is a fair request.
  The PRESIDING OFFICER. The Senator from Maryland.
  Mr. CARDIN. Madam President, I wanted to follow up for a moment 
because we are talking about the No. 2 person in the Department of 
Justice, and one of our responsibilities is to make sure executive 
agencies perform their function. The Judiciary Committee has the 
responsibility to make sure the Department of Justice is doing its 
work. But we, the Judiciary Committee, recommended the confirmation of 
the Deputy Attorney General 6 months ago. How can we expect the 
Attorney General to get the work done if we do not give him the help in 
the confirmation process?
  I agree completely with the chairman of the Judiciary Committee--we 
should have the courage to vote up or down a Deputy Attorney General--
but I really took this time because I find it amazing that Jim Cole has 
not been confirmed. See, I happen to know Jim Cole. I have had 
experiences of working with Jim Cole in my official capacity as a 
Member of Congress. He was selected to be our Special Counsel in an 
extremely complicated and difficult matter in the Ethics Committee in 
the House of Representatives. He wasn't selected by me. At the time, 
Porter Goss, a Republican from Florida, was the chairman of our 
committee, and he worked with six of us in a very difficult 
investigation, and he brought the six of us together because of the 
professional manner in which Jim Cole attacks any of the problems with 
which he is confronted. He is not a partisan; he is a professional. He 
is a professional who understands what it is in the Department of 
Justice and public service. He has worked for both Democratic and 
Republican administrations. He has been recommended by both Democrats 
and Republicans. He is not at all a partisan. He is the person whom you 
would want to have in the Department of Justice. And that is why Porter 
Goss said he found Jim Cole to be ``a brilliant prosecutor and 
extraordinarily talented''--quoting from the Republican from Florida, 
who, along with the Democrats, was very proud of the professional work 
Jim Cole brought to a very partisan battle in the House of 
Representatives.
  We should confirm this nominee. We should at least vote on this 
nominee. But to use this somewhat backward approach to deny a vote on 
the No. 2 person in the Department of Justice is just wrong.
  I understand Senator Sessions is saying there will hopefully be an 
agreement before the end of this Congress. But, quite frankly, this 
nominee came out in July. It is not as if he came out of the committee 
last week. He came out in July. This is an important position, and I 
think we have a responsibility to vote up or down this important part 
of the ability of the Department of Justice to carry out its important 
mission. So I am disappointed that we had an objection heard on this 
nominee. I would urge everyone to make sure this nominee is voted on 
prior to when we leave for this holiday recess.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Madam President, the President and the Attorney General 
need a Deputy Attorney General who can function, who has the confidence 
of the Congress and the American people and will do an excellent, 
first-rate job.
  There are questions about this nominee. Every nominee who has been 
nominated for the Deputy Attorney General or other positions in the 
Department of Justice by President Bush was not rubber stamped within a 
day or two. Tim Flanigan, a highly competent nominee, was opposed by 
Democratic lawmakers aggressively after 9/11. The President withdrew 
him from consideration and then nominated someone who was promptly 
confirmed. He did not try to ram it down our throats.
  Frankly, we have a problem of confidence in the Department of 
Justice. The Attorney General himself, perhaps following the lead of 
the President, has indicated on a number of different occasions a lack 
of commitment to vigorous action to prosecute terrorists who have 
attacked the country, and he has taken other steps.
  I would have liked to have seen a Deputy Attorney General nominee who 
was not in that mold but who was more of a career prosecutor who would 
have helped bring some balance and input from a more traditional view 
of the role of the Attorney General as someone who prosecutes 
criminals, protects the United States, defends law-abiding Americans 
from terrorists and criminals who attack them. That was the approach I 
took when I was attorney general. I hired people who were proven 
prosecutors. But Mr. Cole, for example, right after 9/11, indicated his 
belief that these attacks were not acts of war but instead were 
criminal acts; he wrote this in an article:

       For all of the rhetoric about war, the September 11th 
     attacks were criminal acts of terrorism against the civilian 
     population.

  I do not agree with that. The American people do not agree with that. 
Why does the President want to appoint somebody who thinks 9/11 was a 
criminal act and not an act of war? I think it is a big deal, so that 
is one of the reasons we have raised it. Is he going to bring some 
balance to Attorney General Holder or are they going to move even 
further left in their approach to these issues?
  I would also note he was given a highly paid position as an 
independent monitor of AIG. This is the big insurance company whose 
credit default swaps and insurance dealings really triggered this 
entire collapse of the economic system. He was in the company at the 
time as a government monitor, and he did not blow the whistle on what 
was going on throughout this period of time.
  It is argued that he wasn't precisely there to monitor. Sue Reisinger 
of Corporate Counsel wrote this about his handling of that matter:

       It is as though Cole were spackling cracks in the 
     compliance walls and never noticed that AIG's financial 
     foundation was crumbling beneath his feet.

  Mr. LEAHY. Madam President, would the Senator yield?
  Mr. SESSIONS. One more point.
  Beatrice Edwards of the Government Accountability Project criticized 
Cole for failing to ``detect an atmosphere of . . . laissez-faire 
compliance of the company.'' So he has been criticized for a big, 
important role he had.
  Those were just some of the concerns held in committee. And I wish 
the President had nominated somebody like Larry Thompson, who was 
Department Attorney General under President Bush, and whom everybody 
respected and would have been confirmed like a knife through hot 
butter.
  Mr. LEAHY. Madam President, in a way, the Senator is making my point. 
If he has questions about Mr. Cole, let him argue them, debate them, 
set a time, and then vote yes or vote no. Particular issues come up in 
the Senate, such as nominees, and Republicans

[[Page 18611]]

hold them up so they never come to a vote. Then the Senators can take 
any position they want to back home.
  All I am saying is that we must vote yes or no and not maybe. We have 
too many issues in the Senate, whether it is tax matters, don't ask, 
don't tell, or nomination, where we continue to delay a vote.
  I know the distinguished Senator from Alabama has never hesitated to 
vote yes or no in committee, and I commend him on that. Many times we 
agree, and a number of times we disagree, but he states his position as 
a yes or no. He and I have voted on this issue in committee and stated 
a position. I just hope everybody else can as well.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Madam President, I thank the chairman of our committee. 
He is doing what I would do if I were in his place, in saying: Let's 
give this nominee an up-or-down vote and let's have a debate on it. Our 
leaders are working on that, and perhaps that can be accomplished. But 
it must be noted that this is a nominee who has some controversy.
  I yield the floor.

                          ____________________