A Justice Dept. post that must be filled

Tuesday, December 14, 2010; 9:01 PM

JAMES M. COLE appeared well on his way in July to filling the important No. 2 slot at the Justice Department after earning a favorable vote from the Senate Judiciary Committee.

But the full Senate has yet to vote on Mr. Cole's nomination to what is essentially the post of chief operating officer of the mammoth department. The five months between committee and floor vote appearto be longest delay endured by any deputy attorney general nominee.

The slow crawl comes courtesy of some Senate Republicans who question Mr. Cole's approach to terrorism cases and his role as an independent monitor for struggling financial giant American International Group (AIG). These concerns should not derail Mr. Cole's confirmation - and they certainly should not be used to block a vote.

Mr. Cole, who is in private practice and spent some 13 years in the Justice Department, criticized the Bush administration in a 2002 opinion piece in Legal Times for post-Sept. 11, 2001, tactics, including the use of "military tribunals to try noncitizens for terrorist crimes." Sen. Jeff Sessions (R-Ala.), ranking member on the Senate Judiciary Committee, condemned Mr. Cole for labeling the attack a crime rather than an act of war; he also questioned the wisdom of embracing "a law enforcement approach."

"You capture enemies. You arrest criminals," Mr. Sessions said during the confirmation hearings. Mr. Cole said he believes that recently reconstituted military commissions are a legitimate option, but he rightly refused to rule out federal court prosecutions for some suspects - an approach that mirrors that of the president and the attorney general.

Some Republicans also are troubled by Mr. Cole's work, starting in 2005, as a special monitor for AIG. Mr. Cole made several suggestions about needed improvements in AIG's accounting methods, but he appears not to have addressed the risky and unregulated credit default swaps that led to AIG's collapse and subsequent government bailout because they were not part of his portfolio.

The president deserves enormous deference in executive branch appointments. There is no suggestion that Mr. Cole suffers from the kind of ethical or legal problems that would disqualify a nominee. If Republicans nevertheless find Mr. Cole unacceptable, they should have the decency to hold a floor vote and give him a thumbs down.

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