Republican ‘Nays’ on Antitrust Division Chief Express Lingering Concerns
By Elizabeth Murphy | January 3, 2013 9:07 pm

The Senate Judiciary Committee ranking member was among the 26 Republicans who voted “no” Dec. 30 on the confirmation of William Baer as Assistant Attorney General for the Antitrust Division at the Justice Department.

Sen. Charles Grassley (R-Iowa) suggested in an unusually harsh statement to Main Justice that he continues to be concerned about an unspecified issue with Baer’s background.

William Baer testifying at his nomination hearing before the Senate Judiciary Committee on July 26, 2012. (Elizabeth Murphy/Main Justice)

“In considering the confirmation of the President’s nominees, I give the President great deference… [But] I am not here to merely rubberstamp the President’s desires,” Grassley said. “Factors that I consider relevant include respect for the Constitution, fidelity to the law, intellectual ability, personal integrity and professional competence.  In reviewing Mr. Baer’s entire record, I was disappointed to find he does not meet this test.”

The Judiciary Committee took the unusual step of going into a brief closed session in September to discuss the undisclosed concerns regarding Baer.

A Grassley spokesperson said in September the problem lies with Baer’s FBI background check, a routine sweep by the bureau for any presidential nominee. Grassley and fellow committee members have declined to discuss the matter, saying it’s confidential. Baer was advanced out of committee in September by a vote of 12 to 5, with two Republicans – Sens. Lindsey Graham of South Carolina and Mike Lee of Utah – joining Democrats to support the nomination. Sen. Jeff Sessions (R-Ala.) abstained from the September panel vote.

Baer was confirmed by the full Senate on Sunday by a vote of 64 to 26, with 10 senators not voting.  All those opposed were Republicans, including Grassley and Sessions. Republicans Graham and Lee continued to support the nomination, along with 12 other Republicans who voted “aye.” (View the full roll call vote here.)

Baer, 62, is one of the best known competition lawyers in Washington. He is a former director of the Federal Trade Commission’s competition bureau, where he helped bolster the FTC’s image as an enforcer. He was previously the head of Arnold & Porter LLP’s antitrust practice in Washington.

His critics in the Senate have said that outside of the issue with his background check, he is qualified professionally for the job.

Other DOJ nominees’ problems

Baer joins Deputy Attorney General James Cole and failed Tax Division nominee Mary L. Smith as top Barack Obama Justice Department nominees to garner significant opposition from Republicans, although other officials saw their nominations delayed.

Cole received a recess appointment on Jan. 3, 2011 after the Senate returned his nomination to the White House. Republicans had expressed concerns about a 2002 article he wrote supporting civilian trials for terrorism suspects and his stint as an independent monitor for AIG, the insurance giant that received a federal bailout in 2008. Cole was eventually confirmed in June 2011 by a vote of 55 to 42.

Smith’s nomination was withdrawn in September 2010 after the Senate twice returned it to the White House. Republicans said Smith didn’t have enough tax experience to head the Tax Division.

The most recent Assistant Attorney General confirmed was Kathryn Keneally as head of the Tax Division, who passed the Senate by voice vote in March.

Senators remain opaque

Several members of the Senate Judiciary Committee approached by Main Justice outside the Senate chamber today as the new 113th Congress convened explained their votes, although the central issue bothering his opponents remained opaque.

Sen. Orrin Hatch (R-Utah) told Main Justice that he voted against Baer’s nomination because of the undisclosed background issue. But Hatch hinted that it may relate to a White House policy.

“There is a rule that had been worked out with the White House that I think had been violated,” he said, adding that he would not comment further.

Chuck Grassley (Getty Images)

Sen. John Cornyn (R-Texas) also pointed to the background check as his reason for a no-vote. “There were some confidential matters that we can’t disclose,” he said.

South Carolina’s Graham told Main Justice on Thursday that Baer has a strong resume. He said the issue with his background check did not rise to the level of disqualification in his mind. He would not disclose the specifics of the issue.

“I thought on balance [Baer] was qualified,” he said. “And the objections that other people had did not render him unqualified to me.”

Sen. Patrick Leahy (D-Vt.), the chairman of the committee, told Main Justice that he sees no reason why Baer should have been opposed. Leahy, who missed the actual full Senate vote because of inclement weather, congratulated Baer on his confirmation in a statement.

“Mr. Baer is an outstanding candidate to fulfill this role,” Leahy said. “He has spent over 35 years working in the field of antitrust and  consumer protection.”

Sen. Sheldon Whitehouse (D-R.I.), who serves on the Judiciary Committee, said that Baer was qualified for the position. He added that he does not know why others did not vote for him.

Justice Department spokeswoman Gina Talamona said she could not comment and pointed instead to a statement by Attorney General Eric Holder.

“Bill is a highly-skilled and well-respected antitrust lawyer who understands the importance of promoting competition in order for consumers to reap the benefits of lower prices and better quality products and services,” Holder said in a statement. “I have no doubt that he will lead the Antitrust Division effectively in its vigorous enforcement of the antitrust laws.”

Among the 14 Republicans who joined with unanimous Democrats to confirm Baer were centrists who have now left Congress, including Sen. Richard Lugar (R-Ind.), who was defeated in a GOP primary last year; Sen. Scott Brown (R-Mass.), defeated for re-election; and Sen. Olympia Snowe (R-Maine), who retired. But his GOP supporters also included rising star Sen. Kelly Ayotte of New Hampshire, and libertarian-leaning Sen. Rand Paul of Kentucky.

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