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Public Statements

Executive Session

Floor Speech

Location: Washington, DC


Mr. COBURN. Mr. President, I would like to take a minute to briefly discuss my opposition to the nomination of David Ogden to be Deputy Attorney General of the United States.

First, however, I would like to take a minute to respond to allegations made yesterday by Senator Leahy, who criticized the ``undue delay'' of David Ogden's nomination and further stated that ``It was disturbing to see that the president's nominee of Mr. Ogden to this critical national security post was held up this long by Senate Republicans apparently on some kind of a partisan whim.'' There was no such delay. I would like to set the record straight on the Senate's prompt consideration of this nominee.

President Obama announced Mr. Ogden's nomination on January 5, but the Judiciary Committee did not receive his nomination materials until January 23, and he was not officially nominated until January 26. The committee promptly held a hearing on his nomination on February 5, just 13 days after receiving his nomination materials. His hearing record was open for written questions for 1 week, until February 12, and Mr. Ogden returned his responses on February 18 and 19.

Following Mr. Ogden's hearing, the Judiciary Committee received an unprecedented number of opposition phone calls and letters for a Department of Justice nominee. In total, the committee has received over 11,000 contacts in opposition to his nomination. Despite this overwhelming opposition, the committee promptly voted on Mr. Ogden's nomination on February 26.

I would note that the week prior to the committee's vote on Mr. Ogden's nomination was a recess week and was the same week the committee received Mr. Ogden's answers to his written questions. Per standard practice, the committee could not have voted on him prior to February 26 because the record was not complete.

Rather than hold this controversial nomination over for a week in committee, which is any Senator's right, Republicans voted on Mr. Ogden's nomination the first time he was listed, on February 26. Five of the eight committee Republicans voted against his nomination, a strong showing of the concern over Mr. Ogden's nomination.

And now, just 45 days after Mr. Ogden was nominated and despite significant opposition, the Senate is poised to vote on his confirmation.

Even giving Democrats the benefit of the doubt and allowing that Mr. Ogden's nomination was announced on January 5, 66 days ago, the Senate is still acting as quickly as it has on past Deputy Attorney General, DAG, nominees. On average since 1980, Senators have been afforded 65 days to evaluate DAG nominees. Further, Senators were afforded 85 days to evaluate the nomination of Larry Thompson, President Bush's first DAG nominee and 110 days to evaluate the nomination of Mark Filip. Yesterday, Senator Leahy said he had ``urged'' the ``fast and complete confirmation'' of Mark Filip and that ``he was.'' If 110 days was a ``fast'' confirmation, then how is 66 days an ``undue delay?'' In short, I take issue with the chairman's characterization of any ``undue delay'' on this nomination.

As a member who shares the concerns of the thousands of individuals who have called the committee, I would now like to explain my opposition to David Ogden's nomination to be Deputy Attorney General.

If confirmed, Mr. Ogden would be the second-highest ranking official in the Department of Justice. The Deputy Attorney General possesses ``all the power and authority of the Attorney General, unless any such power or authority is required by law to be exercised by the Attorney General personally.'' He supervises and directs all organizational units of the Department, and aides the Attorney General in developing and implementing Departmental policies and programs. To say the least, this is an important position.

America is entitled to the most qualified and judicious person to fill such a crucial role. My concern is that David Ogden falls short of those expectations.

Mr. Ogden is undoubtedly a bright and accomplished attorney. Although he lacks criminal trial experience that would be helpful in overseeing DOJ components such as the Criminal Division, National Security Division, U.S. Attorneys' Offices, FBI, and DEA, it appears he is fit to serve as Deputy Attorney General.

My concern is with his views on some of the most important issues within the Department's purview. During Mr. Ogden's time as an attorney in private practice, he vigorously defended very sensitive and controversial issues such as abortion, pornography, the incorporation of international law in Constitutional interpretation, and the unconstitutionality of the death penalty for minors.

While I recognize that lawyers should not necessarily be impugned for the views of their clients, I am particularly concerned about a pattern in Mr. Ogden's representations, namely his work on obscenity and pornography litigation. In these cases, Mr. Ogden has consistently argued the side of the pornography producers, opposing legislation designed to ban child pornography, including the Children's Internet Protection Act of 2000 and the Child Protection and Obscenity Enforcement Act of 1998.

At his hearing and in response to written questions, Mr. Ogden maintained that the views he advocated in these cases were those of his client, and not necessarily his own. While I accept this as plausible, I am unsatisfied with Mr. Ogden's unwillingness to answer my specific questions about his own personal beliefs. Discerning such personal views is crucial to adequately evaluating a nominee who may be charged with enforcing the very laws he has opposed in the past.

It would not have been hard for Mr. Ogden to distance himself from some of the extreme views he advanced on behalf of his clients. For example, in his brief for the American Psychological Association in Casey v. Planned Parenthood, he wrote: it is grossly misleading to tell a woman that abortion imposes possible detrimental psychological effects when the risks are negligible in most cases, when the evidence shows that she is more likely to experience feelings of relief and happiness, and when child-birth and child-rearing or adoption may pose concomitant (if not greater) risks of adverse psychological effects for some women depending on their individual circumstances.

I was disappointed--and somewhat shocked--that, given an opportunity to respond to such a statement, the best Mr. Ogden could offer was further clarification that he was representing the views of client. When pressed for his personal views on the matter, he refused to answer. As a result, I am left to guess at what this nominee's views are on a matter of critical importance.

Similarly, I asked Mr. Ogden whether he believes that adult obscenity contributes to the sexual exploitation of children in any way. Further, I asked him whether he personally believes that adult obscenity contributes to the demand for prostitutes, and/or women and children who are trafficked into prostitution. His curt response was the same for both questions: ``I have not studied this issue and therefore do not have a personal belief.'' It is hard to believe that a lawyer who devoted significant time and energy throughout his career to representing the pornography industry would not have an opinion on these issues.

In response to my question about whether he personally believes there is a Federal constitutional right to same-sex marriage, he replied: ``I have not studied this issue and therefore have not developed a personal view as to whether there is a constitutional right to same-sex marriage.'' I simply find it hard to believe that a lawyer of the caliber and experience possessed by David Ogden has not thought about matters of such widespread public debate.

In short, although I am impressed by Mr. Ogden's credentials, his lack of candor in response to my questions leaves me guessing about the approach he will take to these and other sensitive issues at the Department of Justice. While former clients or advocacy should not necessarily disqualify a lawyer from such positions, David Ogden did not do enough to distance himself from controversial views he advocated in the past, often against the interests of the government. Therefore, Mr. Ogden's performance throughout this nomination process is not enough to overcome the unfortunate presumptions created by his record of representation. I am unable to support his nomination.


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