Durbin Calls for Action on Tax Division Nominee
By Stephanie Woodrow | November 23, 2021 4:18 pm
Mary L. Smith (Schoeman, Updike & Kaufman)

Mary L. Smith (Schoeman, Updike & Kaufman)

Sen. Richard Durbin (D-Ill.) last week reiterated his support for the stalled nomination of Mary L. Smith as the head of the Justice Department’s Tax Division, saying that she was fully qualified for the post. Durbin on Wednesday gave a floor speech about the delay, caused by a “hold” on Senate floor action by anonymous Republicans.

Smith, a member of the Cherokee Nation, was approved by the Senate Judiciary Committee June 11 without the support of the panel’s Republican members. The Republicans complained that Smith, a partner at the Schoeman, Updike & Kaufman law firm in Chicago, had virtually no tax experience.

The senior senator from Smith’s home state described her as “a highly qualified nominee,” even though she “is not a traditional tax lawyer.” Durbin touted her experience working on tax law and tax policy issues, adding that “Judiciary Republicans are grasping at straws with [the] allegation” that she is unqualified to head the Tax Division.

Durbin’s speech on Smith came Nov. 18 during Senate floor debate on the nomination of Judge David Hamilton to the Seventh Circuit Court.

The full text of Durbin’s statement is below:

Madam President, I would also like to discuss another nominee whom the Republicans have been stalling: Mary L. Smith. She is President Obama’s nominee to be the Assistant Attorney General for the Tax Division at the Justice Department. Mary is from my home State of Illinois, and Senate Republicans have been holding up her nomination for over 5 months.

Mary Smith is a highly qualified nominee who has had a distinguished 18-year legal career. After graduating from the University of Chicago law school, she clerked for a prestigious Federal judge and then litigated at a large Chicago law firm. She then worked as a trial attorney in the Justice Department’s Civil Division and as a lawyer in the Clinton White House.

Mary returned to private practice and joined the international law firm of Skadden, Arps, Slate, Meagher & Flom, where she focused on business litigation. After 4 years at Skadden, she went to work at Tyco International, where she managed what has been called the most complex securities class action litigation in history.

Mary has also been deeply devoted to pro bono work and public service, which really tells the story of a lawyer’s dedication to the profession. She serves on many bar association boards including the Chicago Bar Foundation, which helps provide free legal services to low-income and disadvantaged individuals.

Mary Smith is not only a highly qualified nominee, she is a historic nominee. Mary is a member of the Cherokee Nation and, if confirmed, she would be the first Native American to hold the rank of Assistant Attorney General in the 140-year history of the Justice Department. She would be the highest ranking Native American in DOJ history.

I was sorry to see that when we took up Mary Smith’s nomination in the Senate Judiciary Committee, the Republican members voted against her. They alleged she was unqualified for the job because she doesn’t have as much tax law experience as other recent Tax Division nominees.

The Judiciary Republicans are grasping at straws with this allegation. First of all, it is an inherently subjective determination. There is no record of how much time Mary Smith has spent working on tax issues compared with previous nominees.

It is true Mary is not a traditional tax lawyer, but she has worked on tax law and tax policy issues throughout her career. During the years she worked at Tyco International, she worked closely with that company’s tax department on responding to IRS subpoenas and assessing the complex tax implications of the $3 billion settlement of the Tyco securities litigation.

When she served in the Clinton White House she worked with congressional offices, the Treasury Department, and the National Economic Council to address tax disparities between Indian tribes and State governments.

And more recently, she served on President Obama’s Justice Department transition team, and she helped review and analyze the Tax Division, the very office she has been nominated to lead.

The second reason the Republican allegation about Mary Smith’s qualifications is off base is because Mary has more litigation, management, and Justice Department experience than previous Tax Division nominees. Those are critical qualifications to lead the Tax Division. In this respect, Mary Smith is more qualified than her predecessors.

Mary is a seasoned litigator who has had multiple trials and courtroom experience. The head of the Tax Division needs first and foremost to be a person with litigation experience, and Mary Smith fits the bill. She has been a litigator in the Justice Department, in two large law firms, and in one of the largest corporations in the country. Two of the recent Tax Division leaders-whom the Judiciary Republicans hold up as models of what it takes to lead that office-had no litigation experience and never had a single trial.

Mary is also more qualified than some of her predecessors when it comes to management experience. The Tax Division is an office with over 350 attorneys. When she worked on the Tyco litigation, Mary managed over 100 lawyers and a $50 million budget. She managed large litigation teams while working at the Skadden Arps law firm. And during her service in the White House, she helped manage and coordinate the work of multiple Federal agencies. None of the other recent Tax Division nominees had as much management experience as Mary Smith, a fact that has little value to the Judiciary Republicans who voted against her.

Mary also has more Justice Department experience than her recent predecessors. She worked in the DOJ Civil Division as a trial attorney, and she was a key member of President Obama’s DOJ review team last winter. She understands the Justice Department as an institution, and the perspective of the DOJ career staff.

In short, Mary has an excellent background to lead the Tax Division. She has litigation experience, management experience, DOJ experience, and tax experience. None of the previous heads of that office had all of these qualifications combined.

One of those prior Tax Division leaders, Nathan Hochman, has come forward in support of Mary Smith’s nomination. Mr. Hochman was the head of the Tax Division under President George W. Bush, so he’s not exactly a partisan Democrat. Mr. Hochman wrote a letter to the Senate and said the following:

I am confident Mary will provide strong leadership for the [Tax] Division and is a good choice. ….. Mary’s private practice experience in complex financial litigation gives her a working background for the type of cases litigated by the [Tax] Division.

I would suggest that President Bush’s Tax Division leader has a better understanding of what it takes to lead the Tax Division than a handful of Senators.

Ted Olson is another prominent Republican who supports Mary Smith for this position. Mr. Olson is one of the most respected lawyers in America and he served as the Solicitor General at the Justice Department under President George W. Bush. He worked closely with the Tax Division and represented that office in cases before the Supreme Court.

Ted Olson wrote a letter to the Senate and called Mary Smith “a first-rate litigator” and “a fine choice to be this nation’s Assistant Attorney General for the Tax Division.”

The Senate has received dozens of other letters of support for Mary Smith, including many from our Nation’s leading Native American leaders. They are eager for the Senate to confirm Mary so she can become the highest ranking Native American in the history of the Justice Department.

The month of November is National American Indian and Alaska Native Heritage Month. We would honor our Native American community by confirming Mary Smith this month.

I urge my Republican colleagues to stop blocking this important nomination and agree to a vote on my Illinois constituent, Mary Smith.

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