Harper Nomination

Floor Speech

Mr. McCAIN. Mr. President, today the Senate will consider the nomination of Keith Harper as the U.S. Representative to the U.N. Human Rights Council.

I am generally deferential to the President's decisions when it comes to nominations brought before the Senate for confirmation, but in extraordinary circumstances I don't hesitate to oppose them. Given the extraordinary circumstances present in this case, I must strenuously object to this nominee.

Mr. Harper is the latest State Department ``bundler-blunder'' that is slated for a U.S. ambassadorship. Earlier this year we saw the administration nominate several wholly unqualified top Democratic fundraisers to serve as ambassadors to various posts around the world.

One such fundraiser, Mr. George Tsunis, was nominated to serve as the U.S. Ambassador to Norway. During his confirmation hearing, Mr. Tsunis revealed his complete unawareness about the country in which he would serve as our Nation's top envoy. For example, he referred to Norway's head of State as their President, not knowing that the country is led by a constitutional monarch.

Another Presidential pick, Colleen Bell, for Hungary could not answer a single question at her Senate hearing about U.S. strategic interests in that country, but that is OK. I am certain her professional background as a TV soap opera producer will come in handy while the crisis in Ukraine continues to unfold.

Inside the beltway, these nominees are known as ``campaign bundlers,'' partisan political operatives who have each fundraised hundreds of thousands--if not millions--of dollars for the President's campaign. Mr. Harper is another example of a campaign bundler wholly ill-suited to serve in the diplomatic post for which he has been nominated.

According to the Center of Responsive Politics, which tracks campaign donations, Mr. Harper is on a list called ``758 Elites.'' These are donors who combined ``at least $180 million for Obama's re-election effort.'' That is a quote from the Center of Responsive Politics.

Mr. Harper is classified as a bundler of $500,000 or more, and his contribution level matched such notables as actor Will Smith, actress Eva Longoria, and Hollywood producer Harvey Weinstein.

I am not naive as to why some of these ambassadorships are doled out. Candidly speaking, Presidents from both parties frequently issue these diplomatic posts as political favors. But I have never before seen an administration this brazen in transmitting individuals who are so terribly and fundamentally unfit for foreign service. Traditionally, according to the retired Foreign Service group, about 30 percent of ambassadorships go to political appointees. Since the election of 2012, that is up to 50 percent. Some go to countries that, frankly, deserve better than someone whose only qualification is whether they raised $500,000 or more for the campaign of President Obama.

Some of my colleagues will say that what sets Mr. Harper apart from these other campaign donors is his cultural heritage. They say Mr. Harper would be the first Native American in history to hold the rank of U.S. Ambassador. They also say he should be rewarded for his work as one of the lead class action attorneys in the Supreme Court case Cobell v. Salazar.

I truly respect that Mr. Harper would be the first Native American to serve as a U.S. Ambassador. What concerns me is his character--particularly his conduct in connection with a matter that could rightly be described as one of the greatest mistreatments of Native Americans by the Federal Government in recent memory. That matter is known as the Cobell case.

In the 1990s hundreds of thousands of Native Americans, led by Elouise Cobell, entered into a class action suit against the Interior Department for mismanaging billions of dollars in land assets that were held in trust for Indian tribes.

During my previous tenure as chairman of the Senate Committee on Indian Affairs, I worked with my colleague, then-vice chairman Byron Dorgan, to end the protracted Cobell lawsuit and enact legislation to settle the case in Congress.

Ultimately, it wasn't until 2010 that Congress finally passed legislation that compensated the Cobell plaintiffs at $3.4 billion. My colleagues know that Mr. Harper was the co-lead counsel for the Cobell plaintiffs and often touted the number of his clients at about 500,000 Native Americans. When the lawsuit was settled, Mr. Harper and his legal team stood to earn up to $99 million in attorney's fees that were written into the Cobell settlement legislation and paid for by the American taxpayer. Let me emphasize: For this good work, Mr. Cobell and his legal team were going to earn $99 million in attorney's fees. Without a doubt, the legislation was a massive bonus check for Mr. Harper and his team, and he and his team have actually sued the Federal Government to receive another $123 million--more than the $99 million he already got. Most of the Native American clients will receive about $1,000 each, and many are still waiting to receive their first payment to date.

Unfortunately, my Democratic colleagues conveniently ignore that Mr. Harper served on President Obama's 2009 transition team for Native American issues while he actively sued the Interior Department. Does it concern my colleagues that several months after the President installed his leadership team at Interior and Justice, the administration essentially fast-tracked the settlement with the Cobell attorneys or that just 1 year later Congress enacted the $3.4 billion Cobell settlement legislation as a top White House priority, ending an over decade-long legal battle? Evidently not.

Now the administration claims there was no wrongdoing or conflict of interest on the part of Mr. Harper in his service to the President's transition team, and I have no choice but to take their word for it, albeit skeptical. But we do know of at least one appalling and unforgivable incident that has dogged Mr. Harper throughout the Senate's consideration of his nomination--and rightfully so.

When the Cobell lawsuit was settled and Mr. Harper's legal team stood to earn tens of millions of dollars, a number of Native American plaintiffs--Mr. Harper's own clients--raised grave concerns that their attorneys would receive such a sizable payout. They argued that more of the Cobell settlement should go to the thousands of Native Americans who had been wronged by Interior.

Four affected Native Americans banded together and filed a lawsuit to challenge the Cobell settlement for this and other reasons. One appellate told the court that ``huge fees awarded to class counsel often indicate the interests of the absent class members have been sacrificed to those of the lawyers.'' As a result of this legal challenge, the court temporarily delayed the Cobell payouts to the plaintiffs and, of course, to Mr. Harper.

In what can only be described as bullying, the Cobell legal team fired back at these four Native Americans. They transmitted a letter dated January 20, 2012, to all of their 500,000 clients that listed the home addresses and telephone numbers of the four appellants and urged all of Indian Country to call and harass them for challenging the Cobell settlement. The letter reads:

Your payments are being held-up by 4 people ..... [each] believes that you are not entitled to the relief (nor the payment of your trust funds) ..... This means you will receive nothing from the settlement: no payment, no scholarship funds, no land consolidation, and no further trust reform .....

Here is the best part. In the letter that was sent to 500,000 people, it said:

[If] you want to ask them directly about their motives, you should contact them at the following address or phone numbers.

I hope my colleagues understand what was done there. These four Native Americans received harassing calls, death threats, had their jobs threatened. One had to disconnect their phone. Another was essentially run off her reservation.

I will submit two articles for printing in the Record at the conclusion of my remarks. The first is an article from the Missoulian entitled ``Objectors to $3.4B Indian trust settlement get angry phone calls,'' which further describes how this letter affected their personal lives. The second is an article from the Native American Times entitled ``Cobell Class Members question settlement, attorney conduct.''

The harassment letter was accessible on the Cobell team's Web site during the Harper committee hearing. It was on his Web site during the hearing in the committee, but it was promptly removed the day after I questioned Mr. Harper about it.

I will also submit for printing in the Congressional Record at the conclusion of my remarks the previously referenced letter provided that the contact information of those four individuals be redacted.

At his committee hearing, Mr. Harper adamantly denied any responsibility for the letter and blamed the strategy entirely on another Cobell attorney. However, Mr. Harper has since muddied his story and later admitted he was aware of the letter on the very day it was transmitted. If he didn't pen the harassment letter or approve it, as he dubiously claims, he certainly did nothing to retract it or denounce it until his Senate hearing.

There is also no disputing that Mr. Harper has held himself out and is overly proud of his status as one of the lead counsels on the Cobell case.

I would argue that those four Native Americans' human rights were abused. People such as Mr. Harper can't be a party to or complicit with a letter attempting to harass Native Americans for exercising their rights and then expect to obtain the Senate's imprimatur to serve as our Nation's ambassador on human rights. That is the irony of all of this. He clearly abused these people's human rights, and now he is going to be an ambassador on human rights?

Mr. Harper has not sufficiently answered my questions about his involvement with the harassment letter or how much in legal fees he has profiteered from Cobell over the years.

I will also submit for the Record his written responses to my hearing questions which conflict with his verbal testimony about the harassment letter and other matters.

I can't in good conscience support Mr. Harper's nomination. The global community faces serious human rights crises, and this is whom the administration sends to speak on behalf of all Americans, including Native Americans? I urge my colleagues to vote against Mr. Harper, and I call upon the administration to transmit a nominee who has an unblemished record of protecting human and civil rights--a record of accomplishment and integrity commensurate with this very important post.

Here is the situation. Mr. Harper will probably be confirmed today on a partisan vote--on a party-line vote. He won't get 60 votes. He will probably get 55 or maybe 1 or 2 less. This is another example of a deprivation that is taking place of my right to advise and consent and that of every single Member of the minority. This nomination would not have come to this floor if we still required 60 votes. But, instead, my colleagues across the aisle have decided to deprive Members on this side of their right of advice and consent because he will be confirmed, probably, today on a party-line basis despite the fact of a clear record of abuse of human rights by a majority here in the Senate.

I tell my colleagues on the other side of the aisle: If we gain the majority in this Senate as a result of this November's election, I will do everything in my power to restore their rights as a minority--their rights of advice and consent. The fact that it was taken away from us for the first time in the history of the Senate is a despicable and black act that will live in history.

Mr. President, I yield the floor.

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