Senate Confirms Breuer, West and Varney for Top DOJ Posts
By Mary Jacoby | April 20, 2009 5:44 pm

After minimal debate, the Senate this evening quickly confirmed Lanny Breuer as Assistant Attorney General for the Criminal Division; Tony West as Assistant Attorney General for the Civil Division, and Christine Varney as Assistant Attorney General for the Antitrust Division.

Their confirmation votes had been delayed by controversy over veteran diplomat Christopher Hill’s nomination to be ambassador to Iraq, prompting Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) to complain that Republicans had delayed getting key Obama nominees in place at the Justice Department. The nominees were uncontroversial and should have been confirmed by voice vote, Leahy added.

Noting the unanimous support for Breuer, a Covington & Burling partner and former Clinton White House lawyer, Leahy said: “The right thing has been done. Not a single dissenting vote.” That prompted Sen. Arlen Specter, the ranking Republican on the Judiciary panel, to chime in about Varney: “Let’s confirm her.”

The vote for Breuer was 88-0; for West, 82-4; and for Varney, 87-1.

The senators who voted against West were: Jim Bunning (R-Ky), Saxby Chambliss (R-Ga.), Johnny Isakson (R-Ga.), and Richard Shelby (R-Ala.). The irascible and erratic Bunning, whom Senate Republicans are desperately trying to discourage from running for re-election next year, was the sole vote against Varney.

Here is the full text of Sen. Leahy’s statement:

Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On The Nominations Of Tony West, Lanny Breuer And Christine Varney
April 20, 2009

This evening, the Senate should act to confirm three of President Obama’s Justice Department nominees: Tony West to serve as the Assistant Attorney General for the Civil Division, Lanny Breuer to serve as the Assistant Attorney General for the Criminal Division, and Christine Varney to serve as the Assistant Attorney General for the Antitrust Division.

I am disappointed that Republican Senators have delayed action on these nominations.  In my view, they should have been confirmed before the two-week Easter recess. There was once a time in the Senate when we acted on nominees pending on the Senate Executive Calendar before a long recess.  Certainly at the beginning of a presidential term, it makes sense to have the President’s nominees in place earlier, rather than engage in needless delay, especially when there is no controversy.  I know of no controversy regarding any of these outstanding nominations.

All three nominees were named by the President on January 22, three months ago.  They each participated in a confirmation hearing on March 10, six weeks ago.  After allowing time for follow-up written questions and answers, they were each considered by the Judiciary Committee, approved without a single negative vote, and reported to the Senate on March 26.  Another week passed, but Republicans remained unwilling to confirm them before the April recess.  That is how we find ourselves here, more than 12 weeks after they were designated by the President, without having acted on those named to head the Criminal Division, the Antitrust Division, or the Civil Division.

I will be very interested to hear why these nominations could not be approved before the Senate recessed on April 2, and why these additional weeks of delay were needed.  I will be interested to see who opposes these nominees, who comes to the floor to speak against them, and who justifies the delay in their confirmations.  To date, I know of no one who opposes them.  I know that no Republican member of the Judiciary Committee voted against any of them when they were considered by the Committee at a business meeting more than three weeks ago.  As I say, there used to be a tradition of comity, and of acting on executive nominations before a recess.  I will be interested to learn how that delay is justified to the Justice Department, to the country and to each of these nominees.

In a statement two weeks ago, I noted my disappointment that the Republican minority has returned to the tactics of anonymous and unaccountable holds, and needless delays.  Attorney General Holder needs his leadership team in place to rebuild and restore the Department.  None of these are controversial nominees. They all received numerous letters of strong support, and endorsements from both Republican and Democratic former public officials. They were all reported out of the Judiciary Committee by unanimous consent. They should have been confirmed weeks ago.

What accounts for the delay?   I hope that someone will explain.  To date no one has.  I am left to think back to a February column written by William Kristol, where he urged the Republican minority to practice obstruction and delay.  He was specifically referring to the Republican efforts to oppose the President’s proposals to revive our economy and build a new foundation for lasting prosperity.  That they have done.  Not one Republican member of the House or Senate voted for the budget and not one Republican member of the House voted for the emergency economic recovery package. They are adhering to a pundit’s advice on important legislation and on the President’s nominations.  Their creed is to “obstruct and delay.”  It is not one of bipartisanship to help the President enact his agenda this year.  It is one designed to “slow down the train.” Mr. Kristol counseled Republicans to insist on “lengthy debate,” while noting that they “can’t win politically right now,” but they can “pick other fights – and they can try in any way possible to break Obama’s momentum.”  That is a destructive prescription, and we see it being played out day after day, issue after issue, nomination after nomination.  Rather than join with the new President as he rallies the country and the world to economic recovery and enhanced security, they persist in their efforts to obstruct and delay.

Recently The New York Times described the results of a New York Times/CBS News poll of the American people.  Since the Republican opposition is so interested in poll-driven politics, I urge them to consider it, and reconsider their own ill-fated course.  The Obama administration is just 11 weeks old, and already the American people have grown more optimistic about the economy and the direction of the country.  Americans approve of the President’s handling of the economy and foreign policy with fully two-thirds saying they approve of his overall job performance.  Following his recent trip to Europe, meetings with other world leaders, his outreach to Turkey and his visit to Iraq, I expect those numbers may be even higher today.   More and more people feel that things are headed in the right direction – despite Republican obstruction.  Two and one half months into office, President Obama has broad support on economic and national security matters with almost two-thirds of Americans believing that President Obama is likely to make the right decisions.

By contrast, only 20 percent of Americans believe that congressional Republicans would more likely make the right decisions about the nation’s economy. The Republican nay-saying is sinking in.  So I urge Senate Republicans, if they will not honor our traditional deference to a new President and vote for his nominees, if they will not join together with President Obama at a time of great challenges to America by working cooperatively and quickly to approve the administration’s law enforcement leadership team, if none of those worthwhile reasons convince them to do the right thing, then I urge them to consider how the American people are reacting to their obstruction.  I urge them to abandon the across-the-board tactics of resistance and delay.  The majority of the American people are calling for us to work together and are rejecting Republican obstruction and delay.

Tony West knows the Department of Justice well. He served in the Department as a Special Assistant to Deputy Attorneys General Philip Heymann and Jamie Gorelick. He then worked as a Federal prosecutor in the U.S. Attorney’s Office for the Northern District of California. His commitment to public service continued when he became a Special Assistant Attorney General in the California Department of Justice. He has also worked in private practice. Mr. West is a graduate of Harvard University and Stanford University Law School, where he served as president of the Stanford Law Review.

His nomination has earned support from both sides of the aisle. The former chairman of the California Republican Party, George Sundheim, sent a letter to the Committee stating that Mr. West is admired by “both sides of the aisle” for his “integrity, honesty and decency,” and that there is no one “more qualified to assume a position of leadership in the Department of Justice.” The Federal prosecutors who worked across the table from Mr. West during the high-profile prosecution of John Walker Lindh witnessed Mr. West’s “extraordinary professionalism,” and “smart advocacy . . . executed with the highest degree of integrity.” We should confirm this outstanding leader for the Civil Division and should not have delayed his confirmation this long.

President Obama has said that Lanny Breuer has the “depth of experience and integrity” to fulfill the highest standards of the American people and the Department of Justice.  I agree.  Mr. Breuer began his legal career as an assistant district attorney in the Manhattan District Attorney’s Office. He told us during his hearing that his commitment to ensuring justice for all Americans stemmed from his days working on the front lines of the fight against crime as a Manhattan prosecutor. His call to public service continued while serving in the White House Counsel’s Office as a special counsel to President Clinton.  Mr. Breuer has also worked in private practice for the prestigious Washington, DC, law firm of Covington & Burling.  He is a graduate of Columbia Law School and Columbia University.

Michael Chertoff, who led the Criminal Division at the Department of Justice during the Bush administration, endorsed Mr. Breuer’s nomination, saying he has “exceptionally broad legal experience as a former prosecutor and defense attorney” and has “outstanding judgment, a keen sense of fairness, high integrity and an even temperament.”  Brad Berenson, a veteran of the Bush administration’s White House counsel’s office, writes that Mr. Breuer is “everything one could hope for in a leader of the Criminal Division.”
Mr. Breuer’s former colleagues from the Manhattan District Attorney’s Office have said that as a criminal prosecutor, he “distinguished himself as a tenacious but scrupulously fair trial lawyer, driven by the unwavering goal of achieving justice.” Former Deputy Attorney General Larry D. Thompson and former Congressman and DEA Administrator Asa Hutchinson have also written to the committee in support of Mr. Breuer’s nomination. I agree with all their comments and wish the Republican minority had not stalled the confirmation of Mr. Breuer’s nomination needlessly for an additional two weeks.

Christine Varney was confirmed to be a U.S. Federal Trade Commissioner in 1994, after being nominated by President Clinton.  As a Federal Trade Commissioner, Ms. Varney gained valuable experience in antitrust enforcement and in reducing anticompetitive measures that harm American consumers.  Her Government service work includes a high level position in President Clinton’s White House, where she served as an assistant to the President and secretary to the Cabinet.  She has worked in private practice for the prestigious Washington, D.C. law firm of Hogan & Hartson.  She also graduated from my alma mater, the Georgetown University Law Center.

Her nomination is supported by individuals who served in the Antitrust Division during both Democratic and Republican administrations.  John Shenefield and James Rill, both former heads of the Antitrust Division, say that she is “extraordinarily well qualified to lead the Antitrust Division.”  Twenty former chairs of the American Bar Association Section of Antitrust Law have described Ms. Varney as a “highly accomplished, capable nominee who will serve consumers and this country with distinction” and who will have “immediate credibility” in her new position.
I agree.  At a time when our economy is suffering, there is a temptation to act anticompetitively.  We need to make sure that we have a strong and effective advocate for competition and the interests of consumers in place.  This was not the time for delay.

Republican Senators delayed for weeks the confirmation of Harvard Law School Dean Elena Kagan to be the Solicitor General of the United States, before demanding an extended debate on her nomination.  They delayed for two weeks what was a unanimous vote in favor of David Kris to serve as the Assistant Attorney General in charge of the National Security Division at the Justice Department.  And they have refused for more a month to consent to a time agreement for debate and a vote on the nomination of Dawn Johnsen to lead the critical Office of Legal Counsel.  The nominations the Senate considers this evening are three additional nominations they held up needlessly this month.
On April 1, both The New York Times and Roll Call featured reports suggesting that Senate Republicans intend to, and are planning to, filibuster the nomination of Dawn Johnsen to serve as the Assistant Attorney General for the Office of Legal Counsel at the Justice Department.  That was no April fool’s joke.  That is a serious matter and one that hurts the President’s efforts to restore the rule of law.  I cannot remember a time when Democratic Senators filibustered a Justice Department nomination.

Speech after speech by Republican Senators just a few short years ago about how it would be unconstitutional to filibuster Presidential nominees appear now to be just speeches that served a partisan political purpose at the time.  Last month, in an online column for Slate entitled “How Many Ways Can Senate Republicans Show Intellectual Hypocrisy?” Dahila Lithwick observed:  “The irony now on display among Republicans on the Senate Judiciary Committee is staggering.”   She could have included Republican Senators who have recently championed the principle that “elections have consequences,” that the President is entitled to his nominees, and that filibustering is an “obstructionist tactic” and “obscene.”

In her April 8 column in The Washington Post, Ruth Marcus reminded “the people who are considering a Johnsen filibuster how hypocritical this stance would be.”  She reminded them that Democrats did not filibuster President Bush’s nominations of John Ashcroft or Ted Olson, although there were more than 40 negative votes on each of those nominations. She noted:  “[T]he president is entitled, absent extraordinary circumstances, to have the advisers of his choosing.  Voting against a president’s nominee is a serious step.  Voting to prevent that nomination from getting an up-or-down vote kicks it up several notches.”  She concluded by explaining why, from her own experience and knowledge, Dawn Johnsen is not out of the mainstream or extreme:  “This is hardly the kind of nominee so extreme that she should not be entitled to an up-or-down vote.”

The men and women at the Department of Justice have a special duty to uphold the rule of law because, as President Obama reminds us, “laws are only as effective, only as compassionate, [and] only as fair as those who enforce them.”  The three nominees Republicans agreed to consider this evening, and Dawn Johnsen, whose nomination they refuse to debate and vote on, are all nominees who meet President Obama standard and will work on behalf of the American people in the best traditions of the Department of Justice.  I urge Republican Senators to vote to confirm these Assistant Attorney General nominations tonight.

Then I hope we will be able to proceed to a time agreement to consider and vote on the nomination of Dawn Johnsen to serve as the Assistant Attorney General to head the important Office of Legal Counsel at the Justice Department.  Her work has been delayed too long.  The President designated her back on January 5.  The time has come to debate that nominations and vote it up or down.  The President has suspended the OLC opinions until they can be reviewed; she will head that review.  The delay has gone on long enough.  The Senate should vote.
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