washingtonpost.com
Nominee's wait puts Senate on defensive

By Jerry Markon
Washington Post Staff Writer
Friday, December 10, 2010; A24

For nearly five months, James M. Cole has been awaiting a Senate vote on his nomination for deputy attorney general, by far the longest delay to fill the position in the past 30 years.

He may have to wait awhile longer.

Cole's nomination for the Justice Department's No. 2 position was approved by the Judiciary Committee on a party-line vote in July but has stalled on the Senate floor. Democrats and Republicans are blaming each other, even as a bipartisan group of former deputy attorneys general is calling on senators to act.

If Congress adjourns this month without a vote on Cole, the nomination will be sent back to the White House. And as the Senate scrambles to finish several legislative matters before adjourning, the fate of Cole's nomination and others is unclear.

"There is a distinct chance that (Cole's) nomination will die,'' said a Republican Senate aide who spoke on the condition of anonymity because the negotiations are private.

Republicans, especially Sen. Jeff Sessions (Ala.), have raised concerns about Cole's views on terrorism and his work as a monitor reviewing the operations of American International Group, the insurance giant bailed out during the financial crisis.

At the same time, Democrats and several Republicans, including former Sen. John Danforth (Mo.) have praised Cole and his credentials, which include 13 years at the Justice Department.

"As an experienced former federal prosecutor and lawyer of exceptional professionalism, Jim Cole is highly qualified for the position,'' said Reid Cherlin, a White House spokesman.

Cole, a white-collar Washington defense lawyer and longtime friend of Attorney General Eric H. Holder Jr., was nominated in May for the position, which had been vacant for three months. The deputy is a chief operating officer for the Justice Department, setting policy and deciding whether to prosecute high-profile cases.

Gary G. Grindler has served in the post on an acting basis since Holder's first deputy, David W. Ogden, departed in February. Current and former Justice officials said Grindler has the confidence of Holder, but emphasize the need for a Senate-confirmed deputy.

The deputy attorney general "is called upon to make crucial, time-sensitive decisions to protect the American people,'' wrote eight former deputy attorneys general from Republican and Democratic administrations in a recent letter to Senate leaders urging a vote on Cole.

Mark R. Filip, deputy attorney general in the George W. Bush administration, said Grindler "has done a great job,'' but it is "much easier to govern an institution in the government as a confirmed person than as a person who everyone expects to be gone soon because they are serving in an acting capacity.''

Since early 1981, the longest previous delay for a deputy attorney general nomination was 61 days, compared with 142 days so far in Cole's case, Senate records show. Nearly all other nominees have been confirmed in less than 30 days.

Sen. Patrick J. Leahy (D-Vt.), the Judiciary Committee chairman, went to the Senate floor Thursday to seek unanimous consent for a vote on Cole. "Let's end the stalling,'' said Leahy, who blamed the delay on Republicans "who continue to block us from considering this well-qualified nominee.''

Sessions, the committee's ranking Republican, objected. "There are questions about this nominee,'' he said, citing broader Republican concerns over Holder's approach to fighting terrorism.

"Frankly, we have a problem of confidence in the Department of Justice,'' Sessions said.

Republicans have focused in part on a 2002 column Cole wrote for Legal Times that criticized the Bush administration's battle against terrorism. "The attorney general is not a member of the military fighting a war - he is a prosecutor fighting crime," Cole wrote. Sessions has said that embodied a failed law enforcement approach to battling terrorists.

Cole also wrote that the attorney general should be an "aggressive advocate" in fighting terror and said at his confirmation hearing in June that the Justice Department must aggressively fight the "scourge" of terrorism.

With 60 votes, Democrats could end debate and move to a final vote. There are now 58 Democratic senators.

Jim Manley, a spokesman for Senate Majority Leader Harry M. Reid (D-Nev.), would not say what route Democrats will take and said Reid is talking with Senate Minority Leader Mitch McConnell (R-Ky) about a number of pending White House nominees.

Calling Cole's confirmation "a key priority,'' Manley said the delay is part of "a two-year record of obstructionism by Senate Republicans.''

Don Stewart, a spokesman for McConnell, denied that Republicans have obstructed White House nominees and said Reid can call for a vote "at any time. It's a matter of choices and priorities, and he has not chosen to file on this nominee. I don't know why.''

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