[Congressional Record (Bound Edition), Volume 159 (2013), Part 13]
[Senate]
[Pages 19461-19470]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

  NOMINATION OF ALEJANDRO NICHOLAS MAYORKAS TO BE DEPUTY SECRETARY OF 
                           HOMELAND SECURITY

  The PRESIDENT pro tempore. 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 Alejandro Nicholas Mayorkas, of 
the District of Columbia, to be Deputy Secretary of Homeland Security.
  The PRESIDENT pro tempore. Under the previous order, there will be 1 
hour of debate on the nomination equally divided and controlled between 
the Senator from Delaware Mr. Carper and the Senator from Oklahoma, Mr. 
Coburn or their designees.
  Who seeks recognition? The Senator from Delaware.
  Mr. CARPER. Mr. President, I will speak very briefly. Then I would 
like to yield to Senator Leahy for some comments he would like to make 
on the President's nominee to be our next Deputy Secretary of Homeland 
Security. The Senator has known Mr. Mayorkas for a number of years, 
worked very closely with him through his committee's oversight of the 
EB-5 program.
  I am delighted he is going to take the floor and move from presiding 
to speaking. I am happy to yield to the Senator from Vermont.
  The PRESIDING OFFICER (Ms. Hirono.) The Senator from Vermont.
  Mr. LEAHY. I thank my friend from Delaware. You know, the Department 
of Homeland Security is the leading agency for many of the pressing 
issues facing our Nation, from providing disaster relief to protecting 
our borders. The agency needs a full complement of leaders. That is why 
I am glad the Senate is considering the nomination of Alejandro 
Mayorkas to be Deputy Secretary of Homeland Security.
  I want to thank the chairman of the Homeland Security and 
Governmental Affairs Committee, Senator Carper, for pushing forward 
with this nomination. Alejandro Mayorkas currently serves as the 
Director of USCIS, the U.S. Citizenship and Immigration Services, the 
agency that makes the immigration system work.
  Director Mayorkas has made it, by every analysis, a stronger and 
better functioning agency. It is unfortunate that in these partisan 
times Director Mayorkas' nomination has been the subject of unfair and 
partisan attacks. It is wrong that some have tried to create 
controversy about him even before his confirmation hearing occurred in 
the Homeland Security and Governmental Affairs Committee.
  The attacks were made even less credible by the conduct of the former 
DHS deputy inspector general who was forced to resign in the face of 
allegations of serious misconduct, a person who frankly has no 
credibility in my mind because of the egregious and inexcusable things 
he did while serving in this role.
  This former deputy inspector general, Charles Edwards, on the eve of 
Director Mayorkas' confirmation hearing authorized the transmittal of 
an email to a Republican Senate office that contained sensitive 
information about an ongoing investigation involving Director Mayorkas.
  One thing that both Republicans and Democrats should agree upon is 
that this conduct is wrong. I believe it is a clear violation of the 
law. It is something that should be condemned no matter who did it. Of 
course, the timing of the transmittal raised serious questions about 
the motivation for its disclosure.
  Inspectors general are supposed to be way above politics. Well, guess 
what happened? The email authorized by this former and now disgraced 
deputy inspector general was published shortly after its transmittal on 
the Web site of a Republican candidate for Governor. Come on. This is 
wrong. Why would a Virginia gubernatorial candidate care about an 
investigation being conducted by the Office of Inspector General for 
the Department of Homeland Security? Well, because some of the 
anonymous allegations repeated in that email by the Office of Inspector 
General involved claims that Director Mayorkas intervened in an 
immigration matter for Terry McAuliffe, the governor-elect of Virginia. 
It was obvious this was done for political motives, not to make 
Homeland Security a better department.
  Director Mayorkas, to his credit, has always put the interests of 
USCIS ahead of his own. He has made tough decisions to make that agency 
better. Sometimes tough decisions are not popular but needed. He made 
the decisions that were best for the country. He has brought 
significant resources to bear in the EB-5 Regional Center program.
  Incidentally, the recommendations that he made to improve the EB-5 
program were in a bill before the Senate Judiciary Committee on 
comprehensive immigration reform, a bill that

[[Page 19462]]

passed the Senate in June. Every single Republican, and every single 
Democrat, voted for those recommendations in the committee. Now, we 
have been waiting for the House to pass this important legislation. But 
in the meantime, Director Mayorkas has worked to ensure the program's 
integrity. He has acted to make sure the agency's decisions are correct 
under the controlling law and regulations. The suggestion that Director 
Mayorkas would risk his reputation and his credibility by improperly 
intervening in a single immigration case, out of thousands his agency 
handles every year, is absurd.
  I remember during the consideration of comprehensive immigration 
reform in the Judiciary Committee--the former ranking member, Senator 
Sessions, praised my amendment to improve the EB-5 program following 
the recommendations of Director Mayorkas. These reforms contained a 
host of improvements to provide USCIS with strong oversight tools, 
security enhancements, and anti-fraud provisions. In fact, 68 Senators, 
Republicans and Democrats, voted for the comprehensive reform bill 
which had the EB-5 program improvements in it. Now, some have said here 
on the floor yesterday that we could make reforms to the EB-5 program 
this very day.
  I would respond that the Senate voted for it earlier this year. I 
appreciate those Senators who want these EB-5 reforms for having voted 
for them back in June. I have seen no evidence that those Senators, who 
put such faith in the former Deputy Inspector General's flawed 
investigation, have asked the tough questions necessary to test the 
integrity of that investigation.
  Instead of considering the circumstances of the disgraced former 
Deputy Inspector General's disclosure, and taking the opportunity to 
ask tough questions of Director Mayorkas at his confirmation hearing, 
Republican Senators on the Homeland Security and Governmental Affairs 
Committee instead decided to boycott that hearing. And when Chairman 
Carper scheduled a Committee business meeting to vote on Director 
Mayorkas' nomination, all Republican senators but two failed to attend 
that meeting. This is unfortunate and in my view, an abdication of our 
responsibility to evaluate the President's nominees.
  As senators, we are obligated to ask the tough questions of all 
nominees, but it is also important that we carefully consider the 
source and motivations behind any allegations against those nominees. 
Regarding the immigration case about which Director Mayorkas is accused 
of acting improperly, it is clear in emails that he wrote, which have 
been publicly disclosed, that he asserts his inability to become 
involved in any specific case. The emails that have been disclosed 
paint a picture of an agency director who took great pains to avoid any 
appearance of favoritism or impropriety.
  I would urge my colleagues to review carefully, and in context, that 
which has been disclosed. Furthermore, the Senate should consider the 
reliability of those who refused to meet with Democratic staff on the 
Homeland Security and Governmental Affairs Committee to discuss their 
allegations.
  Come on. Let's stop playing political games with this. We have a good 
person, a person we should be thankful is willing to serve this 
country, a person who has been the subject of lies and smears. Director 
Mayorkas will serve the Department of Homeland Security, and the 
American people, honorably. Let's vindicate this person. Let's put him 
to work for the good of the country.
  I thank the distinguished chairman from Delaware for his work on 
this.
  Mr. CARPER. I thank the Senator as chairman of the Judiciary 
Committee for the many years working on the EB-5 program to make sure 
it fulfills its potential.
  How much time do I have remaining?
  The PRESIDING OFFICER. Twenty-three minutes.
  Mr. CARPER. I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. COBURN. Madam President, the unfortunate thing is we have a 
disagreement on the precedents of the Senate. We just had the President 
pro tempore of the Senate say that there were lies and smears. Not one 
member of the minority voted against Mr. Mayorkas in his confirmation 
hearing.
  They all voted ``present.'' The reason they did that was for a very 
important reason. The President pro tempore of the Senate did not 
mention the fact that there still--regardless of all of those things, 
there is still an ongoing investigation.
  Never before in the history of the Senate has a position at this 
level been approved with an ongoing investigation. Facts are stubborn. 
I would like for him to tell me what the lies and smears are, that he 
claims, politically we have made. We have made no such claims.
  What we have said is the ICE review of this program said it should be 
eliminated. It happened to have been authored by the President pro 
tempore. We had the majority whip on Wednesday night saying the 
following:

       My colleague, Senator Tom Carper, chairman of this 
     committee has gone to extraordinary lengths to investigate 
     every allegation--

  Is that right? Every allegation? They do not even know what the 
allegations are because we are not privy to them.

     --to answer every question, and to be there to work with the 
     other side of the aisle to try to resolve any problems that 
     they have with this nomination. Sadly, it has not been 
     successful because we do not know what the claims are. We 
     think we know. We also have the chairman of the committee, 
     before he ever heard the specifics of any complaint by 
     whistleblowers demeaning those very whistleblowers and 
     describing their words as ``rumors and innuendo''--people who 
     put their jobs on the line to report.

  Then he claims they will not meet with him, even though he has asked 
them to meet twice. I cannot blame them, because he has already 
dismissed any credibility that they have.
  We should wait for this investigation to be completed. I know we are 
not going to; we are going to roll this right through here. It is a 
disservice to Mr. Mayorkas. It is a disservice to the American people. 
It is a disservice to this body. All that I have heard from people who 
know Mr. Mayorkas are positive things. It is positive, but a legitimate 
investigation is ongoing.
  I would make this other point: The administration knew that there was 
an ongoing IG investigation, and it failed to inform the chairman and 
failed to inform the ranking member when they sent his nomination over. 
Why is that? Why would they not tell us that? Was it just an oversight, 
or did they intend for us not to know?
  The worst thing that comes about because of this nomination moving 
forward is the relationship and the trust that has gone from our 
committee. The difficulties going forward will be major because things 
have been implied that I, personally, am doing things for a political 
purpose rather than from a principled basis. There is no nominee who is 
under an investigation that I will ever meet with before that 
investigation is cleared.
  The other claim that has been made is we wouldn't meet with Mr. 
Mayorkas because we didn't want to know the truth. The fact is we 
didn't want to prejudice our position without the knowledge of the 
facts, but that has not kept some in this body from claiming we had a 
motive other than what we have stated. Therefore, all our motives, 
rather than finding out the truth, our motives are that it has to be 
political.
  I reject that. I take great offense at that.
  I have no doubt that Mr. Mayorkas will be confirmed today.
  The question I have is if, in fact, the IG investigation finds 
credible findings of wrongdoing or undue influence or impropriety, what 
then? How effective is this going to be?
  I am not saying they will find it; I don't know. But we certainly 
know. The extent of the chairman's investigation is meeting with the 
nominee--and I am sure he is an honorable man. But my duty as a Senator 
is to know the facts, not to know my feelings, and we can't do that at 
this time. We are precluded from doing that.
  Therefore, we are going to approve someone without full knowledge. We

[[Page 19463]]

will not be able to ably give our advice and consent because we know 
there are unanswered questions. If those unanswered questions fall to 
the side that says Mr. Mayorkas has done nothing wrong, then he will be 
there, but he will be there in less full power and less confidence than 
he would have had otherwise.
  There have been 20 nominees that have come through our committee. I 
have voted against only one--only one. I have been a good partner for 
the administration in moving their nominees. But to ask us to ignore 
what might be potential critical information is to ask us to abandon 
our duty of advice and consent.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. CARPER. I yield 5 minutes to the Senator from Louisiana, Ms. 
Landrieu.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Ms. LANDRIEU. It is unfortunate that this situation has occurred. 
What is most unfortunate is it casts a poor light on a very 
extraordinary individual, someone who I have had the privilege to know 
very well for the last several years. It pains me and many Members of 
this body who know Ali Mayorkas personally and know of his 
extraordinary service to the United States of America to date that his 
name would be dragged through the mud like this.
  I know the Senator from Oklahoma has been sincere in many of his 
efforts to streamline our government, to make it more efficient. While 
there have been individuals on the other side who have used the seats 
they have been privileged to gain in not the most admirable way, he is 
not one of them. I do not have any poor feelings or disappointment in 
him personally.
  I think what has happened is a complete breakdown of trust on all 
sides, which has caused very extraordinary measures to be taken, 
because from our perspective, from my perspective, if a candidate such 
as this who has already been confirmed twice by the Senate, who served 
our country already as a U.S. attorney with the highest credentials 
prosecuting criminal cases and criminal activity that Senator Coburn 
and Senator Carper have spent a career themselves pushing back so our 
government can be better, more transparent, and more honest, then I 
don't know where we go from here. I truly don't.
  I do know this gentleman was willing to meet with anyone to try to 
clear up any misinformation. In fact, several Republicans, at my 
request--my specific personal request--met with him and came away with 
amazing opinions, high opinions of him when they asked him questions 
and he answered.
  There is a lot of evidence to suggest the ``investigation'' against 
him is bogus, is being conducted for inappropriate reasons. Sometimes 
these things happen in government, and it is our job to sort through.
  Senator Carper as chairman--I know because I serve on the committee 
as well--tried for months and months to get meetings to try to clear 
this up. We couldn't move forward in any way.
  Should this man's name be ruined because there is not cooperation in 
the Senate for the first time in many decades? I have been here almost 
20 years. I have never seen it like this and it is not this gentleman's 
fault.
  I know his wife. I know his two girls. They have been to my office. I 
know his family. I have met his brothers. This is very painful to his 
family, and it is just not responsible.
  It is not only about Director Mayorkas--Ali Mayorkas and his family, 
the Mayorkas family--it is about thousands of good people out there who 
would love to serve in this government despite the fact that many 
people on the other side think it is the worst thing ever created in 
the history of man. That is their view. It happens to be one of the 
greatest creations of man, with divine help, but we cannot convince 
them of that.
  There are thousands of people who would want to serve in our 
government. But after listening to speeches that Mr. Coburn just gave 
or Mr. Grassley, the Senator from Iowa, or the Senator from Oklahoma or 
others, who would want to put their families through this? No one.
  Just because there is a group of people over there who despise the 
government--for whatever reason, I don't know--they shouldn't take 
their anger out on the individuals trying to make it better and fix 
what is broken. The EB-5 Program was broken way before Director 
Mayorkas had the responsibility to try to fix it, and he is only one 
human being. We all have the responsibility to fix this program.
  To blame him and to drag his family through this after an 
extraordinary career prosecuting crime, I understand--and Senator 
Carper will speak more to this--but when the people he worked with in 
the past needed someone to head something such as the integrity 
committee, they would choose him quite often. He has run the integrity 
committees in places where he has worked. That is a great honor.
  In conclusion, now he comes up in one of the most important 
departments of the whole government, Homeland Security--which Tom 
Carper authorizes as chair, and I fund to the best of my ability, with 
all sorts of attacks to our budget, to try to provide resources to this 
agency--and this gentleman whom we should be thanking every day for 
wanting to step up and take this job has to be dragged through this.
  I make no apologies for the rules changes that made this possible. I 
am sorry we were unable to convince people on the other side of his 
outstanding integrity and that the investigation against him is bogus, 
personal, and should be dismissed. The IG who was in charge of it has 
resigned under a cloud. That doesn't seem to make any difference to 
them.
  I am proud to put my name and my vote behind this nominee who I know 
will do an exceedingly fabulous job for this country in a very 
important role we need.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. CARPER. I wish to thank the Senator from Louisiana for that 
heartfelt, passionate endorsement of Ali Mayorkas' nomination.
  How much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 16 minutes remaining.
  Mr. CARPER. I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. COBURN. I appreciate the comments of my colleague from Louisiana. 
It goes right to the point. She may be 100 percent right, but we do not 
know the facts. What we have is testimony from a lot of people that he 
is a fine man, but we don't know the facts. We say we do, but we don't. 
Therefore, we are asking this body to make a judgment without the 
knowledge. It goes against the very charge we have for advice and 
consent.
  We besmirch all of the 650 people who work for this IG--who has not 
been associated with this case in over a month, in terms of personally 
directing it. We besmirch all those other people.
  Were there credible accusations made? There must have been. There 
must have been. Maybe they are not accurate. They are allegations, but 
they should be cleared up and they should be cleared up for Mr. 
Mayorkas' sake so that when he takes this position, it is not under a 
cloud and he is totally exonerated. But we are going to go ahead 
anyway. Regardless of our experience, facts still count.
  I have raised three daughters. They are in their forties and late 
thirties, and I love them dearly. They have great integrity, but they 
have made mistakes in their lives. They have made poor judgments. It 
does not mean they are not great individuals, but they have made 
mistakes.
  What the Senator is saying is cover your ears and cover your eyes and 
don't see mistakes that were made. Make the judgment without that 
knowledge. I have no doubt the words my colleague from Louisiana spoke 
were true in terms of her experience, but the Senator wasn't there. The 
Senator didn't know.
  There are six individuals who have put their jobs on the line to make 
allegations that have to be disproved by

[[Page 19464]]

nonbiased people who work at the inspector general's office.
  What we are saying today is, You are not capable. You don't have the 
quality or the integrity to make a fair decision on this issue and so 
we are going to vote with that. It is amazing how good we are at 
looking into the crystal ball to know the truth without knowing the 
facts.
  The vote is going to be based on the faith that we think Mr. Mayorkas 
has done nothing wrong. I hope that is true. I would have loved to be 
able to have voted for him knowing the facts, fulfilling my 
constitutional duty, but the Senator precludes that. I have no choice 
but to oppose the nomination, not because I don't know Mr. Mayorkas but 
because I don't have the facts.
  I yield back the remainder of my time.
  Mr. CARPER. Madam President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 15\1/2\ minutes remaining.
  The Senator from Delaware.
  Mr. CARPER. Our leadership is the most important element of any 
organization, be it a public or private organization, a business, 
school, a military unit, an athletic team. Leadership is key in 
everything.
  The Department of Homeland Security, which protects us from all kinds 
of attacks--foreign and domestic, manmade and natural--needs 
leadership. They need confirmed Senate leadership. They haven't had it 
for months.
  I am going to thank my colleagues who voted this week to confirm Jeh 
Johnson's nomination as the Secretary of this Department. He will be 
sworn in next week, thank God. He needs a team. On top of that team he 
needs Ali Mayorkas to be the Deputy Secretary.
  Those are not only my words or the words of Senator Landrieu or 
Senator Leahy or Senator Feinstein. We received dozens of letters from 
people who know him. We know these names. We know their faces. We know 
their reputation. Some are Democrat and some are Republican. A number 
of them have helped lead the Department of Homeland Security--lead it.
  This is a vacancy we are trying to fill. Jane Holl Lute is the last 
Deputy who stepped down 6 or 8 months ago. She literally oversaw his 
work and she was his boss, if you will. She thinks the world of him, 
not only in a role he served but as a guy who can step in and fill the 
shoes she used to fill.
  I want to talk about this investigation. There are two tracks we are 
going down here. One is an investigation that was launched in September 
of 2012 by the IG--the OIG for the Department of Homeland Security--in 
2012, 15 months ago. How did we find out about it? We found out about 
it through a leak, information leaked by the office to our friends on 
the other side 3 days before the hearing was supposed to occur.
  We asked to talk to folks who came forward as whistleblowers. We 
asked for them to talk to the minority. We have asked and asked and 
asked and have never been given the chance to talk to them to find out 
what are their allegations, what is their story. Let's hear it. By the 
same token, they have refused to turn to the one person who knows the 
most about what is going on in this agency for the last 4 years--Ali 
Mayorkas--to say: You have been accused of this. Under our system of 
justice in this country the accused actually has a chance to defend 
himself, and when he did--we had a hearing--they didn't show up. They 
won't meet with him either.
  So here is the situation. We have people who may be very good people. 
We don't know them, we don't know their names, and we don't know what 
they are saying. We just know we haven't had a chance to meet with 
them, and we know the one guy who is being accused here hasn't had a 
chance to give his story to those who are accusing him. Is that fair? I 
don't think so. I don't think so.
  So we had that hearing at the end of July and no Republicans came. We 
put every tough question we could to Mr. Mayorkas, under oath, and he 
came through. He said about this case involving Terry McAuliffe that 
Mr. McAuliffe and his company wanted something; they didn't get it. The 
guy who really made the decision, who works for Ali Mayorkas, basically 
said--Mr. Rhew--that he made the decision. He made the decision. He was 
not pressured to make the decision. He ruled against Terry McAuliffe's 
company. End of case.
  Here we are at the end of July. We have the hearing and the 
Republicans don't come. Dr. Coburn joined me in a letter to the 
Inspector General and said: Please, provide the resources to expedite 
and make a priority of this investigation. They were 9 months into that 
investigation at that time. That was the end of July. In August, we 
reached out and said, through staff: What kind of assets, what kind of 
priority are you giving this case? They had three people working on it. 
They have 650 employees in this office--650--and they had 3 full-time 
people working on it, an investigator and two research assistants. So 
we go into August, and they say we need a couple more months. A couple 
more months was October. Dr. Coburn and I sent another letter to the IG 
and said: How are we doing? Let's provide some priority to this, and 
let's get to the bottom of this.
  That was in October. Two weeks ago, minority staff and majority staff 
from the committee had a phone conversation with the OIG's office and 
said: How are we doing? They said: There is no evidence of any criminal 
wrongdoing by anybody--not by Mr. Mayorkas, not by anybody at DHS--but 
we are not done yet. We need several more months. Maybe come back in 
February or March.
  In the meantime, the Department of Homeland Security doesn't have the 
leadership it needs--at least confirmed by us. How long are we going to 
wait? The terrorists aren't going to wait. The ones in foreign 
countries aren't going to wait. The ones in this country aren't going 
to wait. We need leadership. It is the key for everything--everything.
  There is another audit that has been going on as well by the IG--the 
same IG--of the EB-5 program. I'm an old Governor--here we have an old 
State treasurer. We used to get audits all the time in State 
government. Auditors came in to do audits. It drove me crazy when the 
auditor would come in, make an audit for sometime in the past, and 
refuse to acknowledge that the department or the agency being audited 
had actually fixed those problems and submitted an audit that pretends 
like nothing is different. You have seen this. Senator Durbin has seen 
this. I have seen this. It drove me crazy.
  We have an audit that is going to be released, I think publicly in a 
day or 2, that has been shared with us in the Senate this week, and 
there are really four recommendations. As it turns out, of those four 
recommendations one of them needs the Congress to do something. We need 
to pass a law. Ali Mayorkas, 18 months ago said to the Judiciary 
Committee--to Senator Leahy, Senator Grassley: In order for us to make 
sure there is not fraud in the EB-5 program, to make sure there are not 
national security concerns, we need you--Congress--to do something 
about it.
  When they reauthorized the EB-5 program in 2012, guess what. They 
didn't take his recommendations--none of them. This year we were doing 
immigration reform in committee--Senator Durbin was one of the key 
players there--and when we did it, Pat Leahy, chairman of the 
committee, made sure those recommendations were actually included in 
the immigration reform law--the recommendations from Ali Mayorkas--and 
they are in the immigration reform bill. We voted for them. It is over 
in the House now. It is sitting there gathering dust, unfortunately.
  If Senator Leahy doesn't introduce as a stand-alone bill those 
provisions allowing the EB-5 program to have the kind of governance it 
needs through the USCIS agency, if he doesn't do it, I said to him, I 
will introduce the legislation myself. I hope we will have a lot of 
cosponsors.
  There are four recommendations. One of them needs us to do something 
in order for it to occur. The other two are either acknowledged, 
completed or done. On the other one, we just are in disagreement. It is 
outside the scope of the law. That is the audit. That is the audit.

[[Page 19465]]

  So, my friends, I just want to say this: This is not a criminal 
investigation. The things Terry McAuliffe and his company sought were 
denied. The one person within the agency who has actually worked on 
these investigations and worked on these EB-5 programs has come forward 
and said: Look, Mayorkas did nothing wrong. I decided. I decided 
against Mr. McAuliffe's company and Mr. Mayorkas stayed out of my way.
  We have endorsements. We don't know who the detractors are of Mr. 
Mayorkas. I wish we did, and I wish we had a chance to talk to them. We 
are never going to have a chance. I wish my friends on the other side 
had taken the time to talk to Mr. Mayorkas to say: Listen, this is what 
you are accused of. The Democrats don't know what you are accused of, 
but this is what we have been told by these six people. What is your 
story? What is your story?
  Whatever happened to the Golden Rule? What happened to the idea that 
justice delayed is justice denied? You know, Mr. Mayorkas, as Senator 
Landrieu said, has a wife, they have two kids. They have a life to 
live. We have put them through hell for months. What kind of message 
does this send to other people, other agency leaders who go in and take 
on an agency that is in trouble, that has problems and needs to be 
fixed, needs to be shaken up? That person goes in and does it and gets 
whistleblowers or complaints out of it as a result? What do we say to 
other leaders who go into agencies that are in trouble and need to be 
shaken up, to those who are willing to get people to do things 
differently? What do we say to them? Don't do it; don't rock the boat; 
just let things slide? Is that the message we want to send? I don't 
think so.
  We will not have a chance on this side to hear from those six people, 
but I tell you the other people who work in that agency had a chance to 
say something about the way they feel about how their agency is going. 
As my colleagues know, every year we get a report from a nonprofit 
organization that looks at 300 Federal agencies and asks the questions: 
How is morale? How do you feel about the work you are doing? One of 
those 300 was this agency led by Ali Mayorkas, the U.S. Citizenship and 
Immigration Services. The Department of Homeland Security, again this 
year--we just got the results this week, and again this year, the worst 
morale in the Federal Government of any department--in our government, 
the worst morale. But guess what. There is one agency in this 
department that stood up, that stood out, because out of those 300 
agencies, No. 76--the top 25 percent--No. 76 was this agency led by Mr. 
Mayorkas.
  Another question asked of the employees: Do you feel better or worse 
about your senior leadership this year than last year? Since 2009, 
since he took over this organization in 2009, Madam President, guess 
what. Satisfaction with senior leadership increased by more than 20 
percent. They feel better. They feel better about the senior leadership 
with Mr. Mayorkas than they did without his leadership.
  Something is going on in that agency, folks. We are not getting the 
full story, but that survey that we got this week says a lot.
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. CARPER. Please.
  Mr. DURBIN. Through the Chair, I want to ask a question of the 
Senator from Delaware because he has touched on an issue that is 
important to everyone, but especially to this Senator from Illinois.
  It was 12 years ago when I introduced the DREAM Act, and it was a 
little over a year ago the President issued an executive order which 
said they would defer the deportation of those eligible under the DREAM 
Act, but there was also a little wrinkle to it. They said the fees we 
were going to collect under this DACA, they called it--this executive 
order--had to pay for the administration of this executive order. This 
is extraordinary. We were basically saying this was a pay-as-you-go 
effort that has drawn more than 600,000 applications and over 450,000 
approvals. This went right through Mr. Mayorkas's responsibility and 
jurisdiction.
  So I would say to the Senator from Delaware, not only is the morale 
good in his agency, but the job they have done is extraordinary. They 
were given an extraordinary responsibility, and they rose to the 
challenge and handled it professionally. I can tell you, with firsthand 
knowledge, having met with him, watched him, this man is a capable 
administrator, and the people who work for him--clearly, as a result of 
this survey--are very happy with his performance.
  I would just say to the Senator from Delaware, what absolutely 
confuses, mystifies, and infuriates me, is the notion that unidentified 
people will make nonspecific charges against this man, and he is 
supposed to wait for month after weary month? If we talk about the 
basic standard of justice in America, when the government makes a 
charge against someone, there is a complaint--a bill of particulars. 
You know what the charge is, and fairness and justice requires that you 
can confront your accusers and hear from them the information and 
evidence against you.
  In this situation, as best I can understand--and what my colleague 
has said repeatedly on the floor, I say to the chairman--is that this 
never took place. You have waited month after weary month for these 
accusers to come forward and at least tell Mr. Mayorkas what they think 
he has done wrong. Their silence, their refusal to do so, speaks 
volumes to me.
  I am sorry they didn't make their report more fully, but I think, as 
I said the other night on the floor, you are an honorable person. I 
know you, and I have worked with you for over 30 years both in the 
House and in the Senate. When I hear you say on the floor you do your 
best to be fair and bipartisan in everything, and when I hear you stand 
on the floor and say this man has been treated unfairly, he deserves 
his chance, that is what I need to hear.
  I would just ask the Senator from Delaware: Has he had a chance to 
confront his accusers? Has your committee had a chance to even know the 
allegations against him at this point?
  Mr. CARPER. The answer, Madam President, sadly, is no, we have not. 
No, we have not.
  Mrs. FEINSTEIN. Madam President, I wish to speak in support of 
President Obama's nominee for Deputy Secretary of the Department of 
Homeland Security, DHS, Alejandro Mayorkas. I have known Ali for many 
years and am proud to have recommended him to President Clinton for the 
position of U.S. attorney for the Central District of California, as 
well as to President Obama for his current position as Director of U.S. 
Citizenship and Immigration Services, USCIS.
  The role of Deputy Secretary within the Department of Homeland 
Security is an important one. The Deputy Secretary is charged with 
overseeing the agency's efforts to counter terrorism and enhance the 
security and management of our borders, while facilitating trade and 
travel and enforcing our immigration laws. Additionally, the Deputy 
Secretary assists in the safeguarding and security of cyber space and 
provides support for national and economic security in times of 
disaster, in coordination with Federal, State, local, international, 
and private sector partners.
  Mr. Mayorkas is extremely well qualified for this position and brings 
to this office a diverse background and set of experiences in both the 
private and public sectors. I am confident he will do an outstanding 
job as Deputy Secretary for the Department of Homeland Security, and he 
has my enthusiastic and unwavering support.
  Born in Havana, Cuba, Mr. Mayorkas earned his B.A. with distinction 
from the University of California, Berkeley, in 1981. He earned his law 
degree from Loyola Law School in 1985. Those who have enjoyed the 
opportunity to work with him regard him as being highly intelligent, 
thoughtful, kind and compassionate, and dedicated to doing the right 
thing.
  From 1989 to 1998, Mr. Mayorkas served as an assistant U.S. attorney 
for the Central District of California, where he prosecuted a wide 
array of

[[Page 19466]]

Federal crimes, specializing in the prosecution of white collar-crime. 
Federal law enforcement agencies recognized his success with multiple 
awards. For example, he received commendations from FBI Director Louis 
Freeh for his successful prosecution of Operation PolarCap, the largest 
money laundering case in the Nation at the time.
  He continued to distinguish himself by becoming the first U.S. 
attorney in the Central District of California to be appointed from 
within the office. Mr. Mayorkas created the Civil Rights Section in the 
office to prosecute hate crimes and other acts of intolerance and 
discrimination more effectively. He developed an innovative program to 
address violent crime by targeting criminals' possession of firearms, 
prosecuting street gangs, and at the same time developing afterschool 
programs to help at-risk youth discover and realize their potential. He 
uniquely demonstrated the ability to simultaneously be firm with 
criminals, protective of the innocent, and supportive and empowering to 
our future leaders.
  As supported by the many law enforcement and community awards he 
received during his tenure as U.S. attorney, Mr. Mayorkas' 
accomplishments extended beyond his district. He successfully expanded 
his office's community outreach programs and cooperation with 
international players in the fight against crime. He directly resolved 
cases while also overseeing hundreds of attorneys addressing 
immigration matters, which included complex and sensitive prosecution 
of individuals and rings producing false immigration documents, illegal 
reentry cases, and alien smuggling conspiracies.
  The Administrator for the Drug Enforcement Administration, Michele 
Leonhart, noted that ``he was instrumental in broadening collaboration 
between law enforcement agencies to address violent crime and expanded 
cooperation with other nations to address the growing threat of 
transnational crime.'' Combined with his prosecuting white collar 
crime, public corruption, computer-related crime, and international 
money laundering, she wrote that such a ``broad base of experience . . 
. provides him with a unique perspective on threats to national 
security.''
  Mr. Mayorkas further developed his sharp legal skills and management 
experience as a Partner at O'Melveny & Myers, from 2001 to 2009, where 
he represented companies in high-profile and sensitive government 
enforcement cases. He was recognized by his worldwide firm with an 
annual award for ``leadership, excellence and citizenship,'' and was 
named by the National Law Journal as one of the ``50 Most Influential 
Minority Lawyers in America'' in 2008.
  Since his confirmation as Director of USCIS 4 years ago in 2009, he 
has continued to exert his positive influence through leadership, 
excellence, and citizenship in accomplishing the agency's mission. He 
has improved the immigration services and policies of USCIS by 
realigning its priorities for a modern-day America that seeks to 
preserve its legacy as a nation of immigrants while ensuring national 
security and public safety--no easy task.
  Throughout his current role as Director of USCIS, he has successfully 
preserved and increased the integrity of our immigration laws by 
decreasing fraud and bringing accountability to our immigration system. 
For example, Mr. Mayorkas has worked to secure our Nation's criminal 
and immigration laws in the face of increasing gang and border 
violence.
  As technology advances, so too have our needs to prevent fraud and to 
safeguard immigration documents from tampering; Mr. Mayorkas has 
confronted that challenge by enhancing the scope and frequency of 
national security vetting of applicants for immigration benefits and by 
redesigning immigration documentation with enhanced security features.
  Simultaneously, Mr. Mayorkas has led USCIS in the other half of its 
mission--to preserve the role of America as a just nation that treats 
immigrants at our shores humanely and with an eye towards the potential 
they bring to our nation.
  He ensured the prompt review of applications of victims of 
trafficking and domestic violence so that they may begin to pick up the 
pieces and move forward in their lives. Mr. Mayorkas has also improved 
the immigration program for victims of crime who cooperate with law 
enforcement in investigation and prosecutions.
  To combat notario fraud and other unscrupulous practices that 
undermine the integrity of the immigration system, Mr. Mayorkas 
launched the unauthorized practice of immigration law initiative. It is 
a nationwide collaborative effort with Federal, State, and municipal 
agencies and enforcement authorities that works to raise awareness 
among immigrant communities and to investigate and prosecute 
wrongdoers.
  After the 2010 earthquake in Haiti, he developed and implemented a 
humanitarian parole program on an emergency basis to save orphans and 
unite children with their adoptive families here.
  Significantly, upon President Obama's directive to grant deferred 
action to immigrants who were brought to this country as children and 
who seek to legally remain in the United States, Mr. Mayorkas swiftly 
implemented the deferred action for childhood arrivals initiative in 60 
days. In less than 1 year, over half a million people have applied to 
remain in the United States, the only home they have known.
  He also boldly realigned the agency's organizational structure, 
including 246 offices and facilities worldwide, to more accurately 
serve key priorities and achieve efficiency. For example, his stringent 
budget reviews resulted in cost-saving measures of $160 million in 
budget cuts for the fiscal year 2010.
  I recognize that my colleagues have raised concerns about the EB-5 
program in connection with Mr. Mayorkas' nomination.
  I actually believe that Mr. Mayorkas' actions to improve the 
integrity of the EB-5 program are a reason to support his nomination. 
They show that, when Mr. Mayorkas sees a systemic issue requiring 
action, he will figure out what to do and then do everything possible 
within the confines of the law to fix it.
  As my colleagues know, the EB-5 program essentially allows a foreign 
investor to obtain a conditional green card by investing $500,000 or $1 
million in a U.S. business. The conditions can be removed if, after 2 
years, the individual shows 10 jobs have been created by the 
investment.
  Because of the various economic issues involved in adjudicating EB-5 
applications--which can run for thousands of pages--the EB-5 program 
has been called the most complex program USCIS administers.
  I will say up front: I have my own serious concerns about this 
program. I am concerned about the potential for fraud, against both 
foreign and domestic investors. I am concerned that a business created 
with this money may not turn out to be legitimate, and as chairman of 
the Intelligence Committee, I know that certain immigration programs 
may be ripe for exploitation.
  I look forward to the opportunity, before the EB-5 program requires 
our reauthorization in 2015, to bolstering the security of this 
program.
  But none of that has anything to do with this nomination. Mr. 
Mayorkas was required by law, as Director of USCIS, to administer the 
EB-5 program.
  As Director, Mr. Mayorkas saw flaws in the program--flaws in the 
agency's ability to vet participants in the program, and flaws in the 
agency's ability to do the economic analysis necessary. So, Mr. 
Mayorkas set about fixing them. For example:
  Routine security checks of foreign investor applicants and principals 
of regional centers are now done.
  Regional centers now annually must show they meet the eligibility 
requirements and update USCIS on new lines of business. More vetting is 
conducted with these annual filings.
  Mr. Mayorkas brought on financial experts and business lawyers, who 
help review business documents associated with applications.

[[Page 19467]]

  The program has been moved entirely to DC with specialized 
adjudicatory officers and antifraud staff. The program is now close to 
the investigative, intelligence, and financial communities that help 
detect suspicious financial activity.
  I agree with many on the Democratic and Republican sides of the aisle 
that the EB-5 program must be reformed. I supported Chairman Leahy's 
amendment to the immigration bill to do that, and I believe further 
legislative action will be needed to make sure that, if this program is 
reauthorized, it is secure.
  But I also believe that Mr. Mayorkas has performed his job as 
Director of USCIS admirably, including by making the EB-5 program more 
secure. That is a reason to support his nomination.
  Let me conclude by saying that this nominee has my strong support. He 
is a fine individual whom I have known for a very long time. He 
impressed me as U.S. attorney, and he has continued to do so as 
Director of USCIS.
  He understands the immigration system and the many other issues, like 
transnational drug trafficking and national security, that the leaders 
of the Department of Homeland Security must face. And I believe he will 
make an outstanding Deputy Secretary.
  I recognize there is an investigation by the inspector general's 
office at DHS, but the OIG confirmed that ``there is no indication of 
criminal activity'' on Mr. Mayorkas' part. There has been a significant 
delay in this investigation, and it now appears from press reports that 
the inspector general, who himself was being investigated, has 
resigned.
  DHS needs its leaders confirmed. It cannot wait for months and 
months, which it has done already. I do not believe that in this case--
which involves a distinguished nominee who has my confidence--that 
confirmation should be delayed. Rather, we need to confirm a leader who 
understands our complicated immigration laws and policies and who can 
knowledgeably help us navigate and ultimately implement comprehensive 
immigration reform. He has this needed knowledge and ability.
  I urge my colleagues to support Mr. Mayorkas.
  Mr. LEAHY. Madam President, the Department of Homeland Security is 
the leading agency for some of the most pressing issues facing our 
Nation, from providing disaster relief to protecting our borders. To 
serve the American people, this agency needs a full complement of 
leaders, and that is why I am glad the Senate is considering the 
nomination of Alejandro Mayorkas to be Deputy Secretary of Homeland 
Security. I commend Senator Carper, chairman of the Homeland Security 
and Governmental Affairs Committee, for making his nomination to this 
important position a priority for the committee and getting his 
nomination to the Senate.
  Alejandro Mayorkas currently serves as Director of U.S. Citizenship 
and Immigration Services, USCIS. This is the agency that makes our 
immigration system work, and Director Mayorkas has made it a stronger, 
better functioning agency. His expertise on immigration issues will 
help him in his new role, where he is sure to improve coordination 
within the Department. Those Senators who claim to care about 
protecting our borders and improving our broken immigration system 
should support this nomination, just as they should call on the House 
to pass comprehensive immigration reform as we did here in the Senate 
earlier this year.
  It is unfortunate that Director Mayorkas' nomination has been the 
subject of unfair and partisan attacks, and it is wrong that some tried 
to create controversy about Director Mayorkas even before his 
confirmation hearing occurred in the Senate Homeland Security and 
Governmental Affairs Committee. The attacks mounted against Director 
Mayorkas are made even less credible by the conduct of the former DHS 
deputy inspector general, who was forced to resign in the face of 
allegations of serious misconduct.
  On the eve of Director Mayorkas' confirmation hearing, this former 
deputy inspector general, Charles Edwards, authorized the transmittal 
of an email to a Republican Senate office that contained sensitive 
information about an ongoing investigation involving Director Mayorkas. 
The timing of its transmittal raised serious questions about the 
motivation for its disclosure. Then, the email authorized by the former 
deputy inspector general was published shortly after its transmittal on 
the web site of a Republican candidate for Governor of Virginia. Why 
would a Virginia gubernatorial candidate care about an investigation 
being conducted by the Office of Inspector General for the Department 
of Homeland Security? Because some of the anonymous allegations 
repeated in that email by the Office of Inspector General involved 
claims that Director Mayorkas intervened in an immigration matter for 
Terry McAuliffe, the Governor-elect of Virginia. What is worse, the 
former inspector general had received these anonymous allegations in 
September of 2012, yet only disclosed them publicly just days before 
Director Mayorkas was scheduled to appear before the Homeland Security 
and Governmental Affairs Committee.
  Director Mayorkas' professional integrity further undermines these 
bogus allegations. Alejandro Mayorkas served as an assistant U.S. 
attorney and as the U.S. attorney for Southern California, posts he 
held during the course of a decade. Where he has made mistakes, he has 
taken responsibility. In my experiences with him while he has served as 
Director of USCIS, Director Mayorkas has put the interests of USCIS and 
those it serves at the forefront. He has made tough decisions to make 
that agency better--decisions that are sometimes not popular with 
agency employees but decisions that put the institution first. He has 
brought significant resources to bear on the EB-5 regional center 
program, a program that a bipartisan majority of this Senate supported 
when we passed comprehensive immigration reform in June. While the 
House has failed to pass this important legislation that includes 
meaningful improvements to the EB-5 program, Director Mayorkas did not 
let up on his efforts to ensure the program's integrity. He has acted 
to make sure the agency's decisions are correct under the controlling 
law and regulations. The suggestion that Director Mayorkas would risk 
his reputation and his credibility by improperly intervening in a 
single immigration case, out of thousands his agency handles every 
year, is absurd.
  Those who have concerns about the integrity of the EB-5 regional 
center should remember that in May of this year, the Senate Judiciary 
Committee unanimously approved broad reforms to the EB-5 program during 
the committee's consideration of comprehensive immigration reform. 
These reforms, which received praise from the Judiciary Committee's 
former ranking member, Senator Sessions, contained a host of 
improvements recommended by Director Mayorkas and other administration 
officials to provide strong oversight tools, security enhancements, and 
antifraud provisions. In June, 68 Senators voted in favor of the 
comprehensive reform bill, of which my EB-5 reforms were a part. 
Senators on both sides of the aisle who have supported this program 
know it creates jobs in American communities and is an important and 
viable source of capital investment for many American entrepreneurs. 
Senator Grassley said on the Senate floor earlier this week that we 
could make reforms to this program ``this very day.'' I would respond 
that the Senate has voted to make them already this year, and I was 
glad to have his support for my strong reforms in the Senate Judiciary 
Committee.
  Those who say that the Senate should not approve Director Mayorkas' 
nomination because a scandal-plagued and now- resigned deputy inspector 
general sat on allegations made against Director Mayorkas for 10 months 
before disclosing them in a highly improper way days before Director 
Mayorkas' confirmation hearing should carefully consider whether these 
circumstances merit our faith that the investigation is truly impartial 
or legitimate. I have seen no evidence that those Senators who put

[[Page 19468]]

such faith in the former deputy inspector general's flawed 
investigation have asked the tough questions necessary to test the 
integrity of that investigation. Instead of considering the 
circumstances of the former deputy inspector general's disclosure, and 
taking the opportunity to ask tough questions of Director Mayorkas at 
his confirmation hearing, Republican Senators on the Homeland Security 
and Governmental Affairs Committee decided to boycott that hearing. And 
when Chairman Carper scheduled a committee business meeting to vote on 
Director Mayorkas' nomination, all Republican Senators but two failed 
to attend that meeting. This is unfortunate and, in my view, an 
abdication of our responsibility to evaluate the President's nominees 
independently.
  As Senators, we are obligated to ask the tough questions of all 
nominees, but it is also important that we carefully consider the 
source and motivations behind any allegations against those nominees.
  Regarding the immigration case about which Director Mayorkas is 
accused of acting improperly, it is clear in emails that he wrote which 
have been publicly disclosed, that he asserts his inability to become 
involved in any specific case. The emails that have been disclosed 
paint a picture of an agency director who took great pains to avoid any 
appearance of favoritism or impropriety. I would urge my colleagues to 
review carefully, and in context, that which has been disclosed. 
Finally, it is troubling that the individuals who have brought 
allegations to Republican Senators against this nominee would not even 
agree to meet with Chairman Carper or his staff. The Senate should 
consider the reliability of those who have made allegations but are 
unwilling to let those allegations be fully considered.
  I have every reason to believe that Director Mayorkas will serve the 
Department of Homeland Security and the American people honorably. I 
have no doubt about the quality of his character or his integrity as a 
public official. And I regret that his nomination has been so 
needlessly politicized. Alejandro Mayorkas deserves an up-or-down vote 
and the support of the Senate.
  Mr. CARPER. Madam President, how much time remains?
  The PRESIDING OFFICER. The Senator has 1\1/2\ minutes remaining.
  Mr. CARPER. Madam President, my friend Senator Durbin, from 
Springfield, IL, Land of Lincoln, reminds me as I close here this 
morning of something Lincoln once said. He was meeting with his Cabinet 
during the heart of the Civil War. Things had started to turn for the 
better for the Union. The Union leader on the military side was a guy 
named Grant. He allegedly liked to drink, a lot. Some of the folks on 
the President's cabinet didn't like him. They said: Mr. President, we 
need to get rid of Grant. He is not the kind of guy we want to have 
leading our forces.
  Grant had led a reversal of fortune, so that the Union having been on 
the losing side ended up on the winning side again and again. Lincoln 
looked at his Cabinet, and he said these words, and I paraphrase them: 
Find out what Grant is drinking, and give it to the rest of my 
generals.
  Rather than criticize or hang out to dry a leader of an agency who 
has turned it around, who enjoys the broad support of the folks within 
his agency; rather than criticize him and finding fault and leaving him 
out there unable to defend himself against unknown accusations, we 
should find out--in the words of Lincoln--what Grant is drinking. In 
this case we should find out what Mayorkas is doing, what has he done 
to turn around an agency and make sure the other people who come into 
positions of authority are taking of the same beverage.
  With that, I yield back the remainder of my time, and I yield the 
floor.
  Mr. DURBIN. Madam President, the unanimous consent agreement is that 
we would move to this vote on the Mayorkas nomination following the 
debate. This debate has ended a little earlier than we anticipated. 
This first rollcall, we are going to accommodate Members and leave it 
open so they have a chance. But because most are anxious, we are hoping 
Members come to the floor early, vote, and we can start the series of 
votes agreed to.
  Mr. COBURN. 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 Alejandro Nicholas Mayorkas, of the District of Columbia, to be 
Deputy Secretary of Homeland Security?
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Nevada (Mr. Reid) is 
necessarily absent.
  I further announce that, if present and voting, the Senator from 
Nevada (Mr. Reid) would vote ``aye.''
  Mr. CORNYN. The following Senators are necessarily absent: the 
Senator from Tennessee (Mr. Alexander), the Senator from Arizona (Mr. 
Flake), the Senator from Georgia (Mr. Isakson), and the Senator from 
Nebraska (Mr. Johanns).
  Further, if present and voting, the Senator from Tennessee (Mr. 
Alexander) would have voted ``nay.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 54, nays 41, as follows:

                      [Rollcall Vote No. 286 Ex.]

                                YEAS--54

     Baldwin
     Baucus
     Begich
     Bennet
     Blumenthal
     Booker
     Boxer
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Coons
     Donnelly
     Durbin
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Heinrich
     Heitkamp
     Hirono
     Johnson (SD)
     Kaine
     King
     Klobuchar
     Landrieu
     Leahy
     Levin
     Manchin
     Markey
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murphy
     Murray
     Nelson
     Pryor
     Reed
     Rockefeller
     Sanders
     Schatz
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Warren
     Whitehouse
     Wyden

                                NAYS--41

     Ayotte
     Barrasso
     Blunt
     Boozman
     Burr
     Chambliss
     Coats
     Coburn
     Cochran
     Collins
     Corker
     Cornyn
     Crapo
     Cruz
     Enzi
     Fischer
     Graham
     Grassley
     Hatch
     Heller
     Hoeven
     Inhofe
     Johnson (WI)
     Kirk
     Lee
     McCain
     McConnell
     Moran
     Murkowski
     Paul
     Portman
     Risch
     Roberts
     Rubio
     Scott
     Sessions
     Shelby
     Thune
     Toomey
     Vitter
     Wicker

                             NOT VOTING--5

     Alexander
     Flake
     Isakson
     Johanns
     Reid
  The nomination was confirmed.
  Mr. DURBIN. Madam President, I ask unanimous consent that the 
remaining mandatory quorums with respect to these nominations required 
under rule XXII be waived; further, that all remaining votes be 10-
minute votes.
  I urge my colleagues to stay on the floor so we can hold to the 10-
minute deadlines. People have planes to catch.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.


                      Nomination of Brian J. Davis

  Mr. GRASSLEY. Madam President, today we consider the nomination of 
Brian Davis to be a District Court Judge for the Middle District of 
Florida. I will vote for him today (although there has been some 
controversy surrounding his nomination). I wish to take a minute to 
discuss the nomination.
  Judge Davis made a number of controversial remarks a few years ago. 
During his hearing last Congress, Judge Davis was asked to provide some 
clarification regarding those comments. After carefully reviewing his 
answers from the hearing, many of us concluded that they didn't provide 
the clarity that we had hoped he would provide. For that reason, 
following his hearing, I asked Judge Davis some follow-up questions for 
the Record, hoping to get the clarity, in writing, that I didn't hear 
him provide during his hearing.
  Unfortunately, after reviewing his written answers, I concluded that 
Judge Davis didn't fully appreciate why many found his comments so 
troubling. For instance, when I asked him

[[Page 19469]]

about these statements he wrote that a ``number of my statements could 
be misunderstood'', but he neither apologized for them nor said 
anything to demonstrate that he fully appreciated why his comments were 
so problematic.
  As a result, in the last Congress I reluctantly opposed his 
nomination.
  Judge Davis, of course, was renominated this Congress. On September 
12th, he submitted a letter to the Florida Senators.
  In that letter, Judge Davis apologized for his comments--without 
qualification.
  He wrote, ``I believe that several of the statements I made in the 
past were inappropriate and improper.'' He went on to write, ``I 
apologize for any inappropriate statements and deeply recognize the 
harm that they could cause if they gave the misimpression that I am 
anything other than impartial or that I maintain any bias or 
prejudice.''
  As I wrote to Judge Davis in a follow-up letter on September 25th, 
unlike the last Congress, I believe the apology Judge Davis transmitted 
on September 12 for those comments was without qualification. 
Therefore, in my view, it demonstrated both courage and humility.
  In my letter to Judge Davis, I asked him simply to confirm that he 
was apologizing for his comments regarding Dr. Henry Foster, Dr. 
Joycelyn Elders, and Justice Thomas.
  In a follow-up letter he wrote to me on September 26, he confirmed 
those were the ``inappropriate comments'' he referenced in his letter 
to the Florida Senators.
  I ask consent that both my letter to Judge Davis, and his response, 
be made part of the Record.
  I have given this nomination a great deal of consideration. I believe 
Judge Davis has taken steps this Congress that, in my view, he didn't 
appear willing to take last Congress. Taking this into consideration, 
together with the fact that he enjoys the support of his home State 
Senators, I am willing to give Judge Davis the benefit of the doubt and 
will support his nomination today.
  I yield the floor.

                               Washington, DC, September 25, 2013.
     Judge Brian J. Davis,
     Nassau County Courthouse,
     Fernandina Beach, FL.
       Dear Judge Davis: I write to follow up on your September 
     12th letter to Senators Nelson and Rubio, copying me and 
     Chairman Leahy, regarding concerns with your record Members 
     of the Senate Judiciary Committee, including me, raised last 
     Congress.
       As you alluded in your letter, during your hearing last 
     Congress, Senator Lee asked you a number of questions 
     regarding various remarks and speeches you made throughout 
     your career. After carefully reviewing the answers you gave 
     during the hearing, I concluded your responses lacked the 
     breadth and clarity I had hoped you would provide when 
     afforded the opportunity. For instance, you conceded that 
     some comments were ``inappropriate,'' but then stated ``they 
     were inappropriate for the reason that an impression could be 
     gotten from them that somehow the court maintained a racial 
     prejudice.'' That response troubled me because it did not 
     appear to fully recognize the reason some find those comments 
     concerning. Specifically, the comments appeared quite plainly 
     to assign a racial motivation to those who opposed particular 
     nominees on purely policy grounds.
       Consequently, following your hearing I sent you a number of 
     follow up questions for the record. Again, I was hopeful to 
     receive some clarity regarding those comments. But after 
     carefully reviewing your responses, I reluctantly reached the 
     conclusion that you still did not fully appreciate why some 
     viewed your comments as inappropriate. For instance, I asked 
     about your comments regarding President Clinton's nomination 
     of Dr. Henry Foster's nomination to be surgeon general. But 
     rather than concede what appears to be apparent by the words 
     you used, you answered instead that the comments were 
     inappropriate because they ``could be interpreted'' in a 
     particular way, and therefore that you lacked impartiality. 
     In my view, your answers to several other questions lacked 
     clarity in a similar fashion. For these reasons, among 
     several others, reluctantly I opposed your nomination last 
     Congress.
       With this background, I received your letter of September 
     12th, 2013. In your letter you wrote, without qualification, 
     ``I believe that several of the statements I made in the past 
     were inappropriate and improper.'' You went on to write, ``I 
     apologize for any inappropriate statements and deeply 
     recognize the harm that they could cause if they gave the 
     misimpression that I am anything other than impartial or that 
     I maintain any bias or prejudice.'' I note that these two 
     statements represent a step that you did not appear willing 
     to take last Congress. In my view, this demonstrates both 
     courage and humility. Thank you for that letter.
       As your nomination is now again pending before the 
     Committee, I write to seek one further clarification. As I 
     noted, you wrote in your recent letter that you apologize for 
     ``any inappropriate statements,'' but you did not specify the 
     statements to which you referred. I want to confirm that you 
     are referring to your comments regarding Dr. Henry Foster, 
     Dr. Joycelyn Elders, and Justice Thomas.
       Thank you in advance for your prompt reply.
           Sincerely.

                                          Charles E. Grassley,

                                                   Ranking Member,
     U.S. Senate Committee on the Judiciary.
                                  ____

                                                    Circuit Court,


                                               Fourth Judicial

                                           Circuit of Florida,

                         Fernandina Beach, FL, September 26, 2013.
     Senator Charles E. Grassley,
     Ranking Member, U.S. Senate Committee on the Judiciary, 
         Washington, DC.
       Dear Senator Grassley: Thank you for your letter of 
     September 25, 2013, and the opportunity to further clarify my 
     views.
       I understand your concerns, and please know that my 
     appreciation of the inappropriateness of statements I have 
     made in speeches include those referenced in your letter 
     regarding Dr. Foster, Dr. Elders and Justice Thomas.
       Thank you for your continued consideration of my 
     nomination.
           Sincerely,
                                                   Brian J. Davis.


                      Nomination of John Koskinen

  Mr. HATCH. Madam President, I wish to speak on the nomination of John 
Koskinen to be the next Commissioner of the Internal Revenue Service.
  I want to say upfront that I support Mr. Koskinen's nomination as I 
believe he is a qualified candidate for this position and he deserves 
to be confirmed.
  However, I do have to say that I am disappointed in the process by 
which his nomination has been moved through the Senate, both in the 
Finance Committee and here on the floor. There is simply no reason for 
the Senate to rush to confirm Mr. Koskinen, and there is ample reason 
for us to take our time.
  It goes without saying that the IRS is one of the most powerful 
agencies in our government. It is both feared and loathed by people 
throughout the country. That being the case, it is absolutely essential 
that all the actions of the IRS and its leadership are above board.
  That is the only way for the agency to maintain its credibility.
  That is the only way an agency this powerful can maintain the trust 
of the American people.
  The American people should be able to trust that the IRS will enforce 
our Nation's tax laws without bias or prejudice. If that trust is 
broken, it damages the credibility of our entire government.
  Needless to say, over the last few years, the IRS hasn't done a good 
job of maintaining that trust and, as a result, it has eroded its own 
credibility.
  I am talking, of course, about the IRS political targeting scandal 
currently under investigation in the Finance Committee.
  If there is one thing that everyone should agree on, it is that the 
IRS should enforce the tax laws as they are written by Congress without 
consideration of political views. Sadly, it appears that, for a time, 
not everyone at the IRS shared that view.
  When this scandal first came to light, there was condemnation on all 
sides and everyone--regardless of party affiliation--wanted to get to 
the bottom of it.
  President Obama, for example, said ``I have got no patience with it, 
I will not tolerate it, and we will make sure that we find out exactly 
what happened on this.''
  Majority Leader Reid expressed similar views here on the floor, 
stating: ``I have full confidence in the ability of Senator Baucus and 
the Finance Committee to get to the bottom of this matter and recommend 
appropriate action.''
  I hope that hasn't changed.
  I hope that the effort to rush Mr. Koskinen's nomination through the 
Senate is not part of an effort to sweep the Finance Committee's 
investigation under a rug and hope it disappears.

[[Page 19470]]

  As I said, there is no reason for us to move so quickly on this 
nomination.
  By waiting until our investigation has concluded, we can ensure that 
the next commissioner--presumably Mr. Koskinen--will begin their time 
with the benefit of the findings of the investigation. This would put 
him in a better position to fix the problems we have uncovered and to 
move the agency forward. In addition, it would ensure that he has the 
confidence of Members of both parties, which is vital with an agency of 
this size and stature.
  I am encouraged by Mr. Koskinen's commitment to continue the 
cooperation the Finance Committee has enjoyed so far in its 
investigation, as well as his commitment to working with Congress to 
fix the IRS's many problems.
  I plan on holding him to his promise.
  The confirmation of a new IRS Commissioner should not be a partisan 
issue.
  My fear is that, by including Mr. Koskinen in the current partisan 
fight over executive branch nominees, the Senate Democratic leadership 
is injecting partisanship where none should exist. This further 
undermines the IRS as an agency, not to mention Mr. Koskinen's future 
leadership of the agency.
  This is not a time that we should be undermining the IRS. In addition 
to restoring the agency's damaged credibility--which I believe should 
be the next commissioner's top priority--there are a number of other 
challenges facing this agency.
  For example, there is the IRS's significant role in the 
implementation of ObamaCare. As we have seen thus far, this presents a 
number of difficulties, both in terms of operation and enforcement.
  Both the IRS's inspector general and insurers throughout the country 
have questioned whether the agency is capable of administering the 
Affordable Care Act's premium subsidy program without massive amounts 
of fraud or improper payments.
  On top of that, there are the proposed IRS and Treasury regulations 
addressing the political activities of tax-exempt organizations. Given 
the IRS's recent problems in dealing with these types of organizations, 
many of us have reason to be skeptical that the agency can promulgate 
such rules without further bias or prejudice.
  On all these issues, Mr. Koskinen has committed to working with 
Congress, and with Members of both parties.
  I hope that he lives up to this commitment.
  It is essential that he does so, because, as I said, the IRS is an 
agency rife with problems, most of which are self-inflicted. These 
problems are not simply going to go away when a new Commissioner is 
confirmed, and they aren't going to be solved if the agency ignores the 
input and inquiries from Members of Congress.
  Once again, I support Mr. Koskinen's confirmation. I just wish we had 
gone a different route with regard to his nomination in the Senate.


                       Nomination of Janet Yellen

  Mrs. FEINSTEIN. Madam President, today I wish to express my support 
for Vice Chairman Janet Yellen, nominee for Chairman of the Federal 
Reserve.
  Dr. Yellen has dedicated her life to understanding the complex and 
evolving field of economics, and her background makes her an ideal 
candidate to replace Chairman Ben Bernanke and continue the Fed's 
efforts to boost economic growth, increase the pace of job creation, 
and ultimately reduce the crushing unemployment that has been a drag on 
our recovery.
  Dr. Yellen's academic credentials and experience in economics are 
first rate.
  She graduated suma cum laude from Brown University in 1967 and later 
earned a doctorate in economics from Yale University in 1971.
  She began her teaching career as an assistant professor at Harvard 
University, where she taught from 1971 to 1976.
  In 1977 and 1978 she began her public service as an economist at the 
Federal Reserve Board of Governors.
  In 1980, Dr. Yellen headed west to my home State of California to 
become an assistant professor at the University of California, 
Berkeley, She rose to professor emeritus of business and economics and 
was twice awarded teacher of the year at Berkeley's distinguished Haas 
School of Business.
  During her time at Berkeley and elsewhere, Dr. Yellen published 
numerous research works, including the well-regarded ``Waiting for 
Work,'' a comprehensive study of unemployment she completed with her 
husband, the economist George Akerlof.
  Dr. Yellen's research has been published in the Journal of Economics, 
Business Economics, and the Brookings Papers on Economic Policy, 
amongst others.
  Her research has primarily focused on unemployment, monetary policy, 
and international trade--a perspective that will be vitally important 
as the Fed works to solve the complex issues facing the global economy.
  In 1997, she left the Federal Reserve to chair the Council of 
Economic Advisers during the Clinton administration.
  Before her appointment to Vice Chairman of the Fed she led the 
Federal Reserve Bank of San Francisco, keeping watch over financial 
conditions in the region as well as providing counsel on the direction 
of monetary policy.
  In 2010, she was appointed by the president and confirmed by the 
Senate to be Vice Chairman of the Federal Reserve where she has ably 
served. She has been intimately involved with the Fed's interest rate 
policy and its continuation of the unprecedented program of 
quantitative easing.
  I believe that this extensive experience working on monetary policy 
issues at the Federal Reserve will make for a seamless transition to 
Chairman and provide stability to financial markets.
  Recently, a lot of attention is being paid to the issue of growing 
income inequality in our country.
  Over the last few decades, middle-class incomes have stagnated while 
incomes for high earners have enjoyed a stratospheric rise. 
Increasingly, the owners of capital are reaping a greater and greater 
share of the profits, while hard working Americans struggle to keep up.
  If this trend continues, it will make for a more volatile economy and 
put middle and lower income families in increasing financial strain.
  Most importantly, if income inequality is really a product of 
inequality of opportunity, then the United States will no longer 
deliver on its most fundamental promise, one that serves as the 
foundation for our social contract.
  To me, that outcome is unacceptable, and our leading economic 
thinkers should be working night and day to ensure that every hard-
working American has the opportunity to be successful in this country.
  The most direct way to address income inequality is to increase the 
rate of job creation in the United States. We have made significant 
progress in the recovery from the great recession, but the recovery has 
not been robust enough to translate into a robust labor market which 
increases wages for all Americans.
  Dr. Yellen has demonstrated a consistent ability to balance the Fed's 
mission of increasing employment and maintaining stable inflation. Her 
academic work suggests that she is keenly aware of the devastating 
impact of persistently high unemployment, both for families and the 
economy writ large.
  With her keen understanding of economics and a rigorous analytical 
process and a distinguished career in academia, Dr. Yellen is the right 
person to lead the Fed at this time.
  And let me just say, a woman as Chairman of the Federal Reserve--a 
talented and extraordinarily well qualified woman--is a positive thing.
  I enthusiastically support her nomination, and I encourage my 
colleagues to do the same.

                          ____________________