Executive Session

Floor Speech

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Mr. GRASSLEY. Mr. President, I urge my colleagues to vote for the nominees who are before the Senate today.

At this point in President Obama's term, when we get done with these two today, we will have approved 195 of the President's judicial appointments, and we have only disapproved 2. That is a 99-plus percent voting record.

It would help if the President would speed up getting his nominees to the Senate. There are 81 vacancies now. The President has only submitted 29. That means there are 52 vacancies that could be filled by the White House that the Senate would have an opportunity to work on as well.

So far this year, the Senate has confirmed 22 lower court nominees. Today, after these nominees are confirmed, we will have confirmed more than twice the number of district and circuit judges that were confirmed at this point in President Bush's second term. In fact, we will have confirmed more lower-court nominees than were confirmed in the entire first year of President Bush's second term.

Think about that--I will repeat it. In the 5 months of this President's second term while we have been in session, we have confirmed more district and circuit judges than were confirmed in the entire first year of President Bush's second term.

The bottom line is that the Senate is processing the President's nominees exceptionally fairly. He is being treated much more fairly than Senate Democrats treated President Bush in 2005.

So I just wanted to set the record straight before we vote on these nominees. I expect they will both be confirmed and I congratulate them on their confirmations.

Judge Quiñones received her B.B.A. from the University of Puerto Rico in 1972 and her J.D. from the University of Puerto Rico School of Law in 1975. Upon graduation, she worked as a staff attorney with Community Legal Services in Philadelphia, where she focused on strictly civil and administrative matters, appearing predominately in family court and before administrative judges.

From 1977 to 1979, Judge Quiñones wrote opinions in support of decisions rendered by an Administrative Judge at the Department of Health & Human Services. From 1979 to 1991, she was a staff attorney at the Department of Veterans Affairs, VA, where her practice involved the interpretation and application of the VA's administrative rules and regulations. During this time, she also appeared in State court and administrative agencies to represent the VA before the Equal Employment Opportunity Commission and Merit Systems Protection Board. Additionally, from 1980 to 1991, Quiñones worked as an arbitrator for the Arbitration Center at the Philadelphia Court of Common Pleas, designed to dispose of small civil cases. In 1991, Judge Quiñones left the VA and established a solo practice. During this time she represented a criminal defendant and sat as an arbitrator in insurance matters.

As a practicing attorney, Judge Quiñones appeared in court with occasional frequency. She estimates that over the course of her pre-judicial career, she tried 20 cases in family court, 300 commitment hearings before a Mental Health officer, pursuant to her work at the VA, and 600 administrative hearings.

In 1990, Judge Quiñones was nominated by then Governor Robert Casey to a judgeship on the Court of Common Pleas for the First Judicial District of Pennsylvania, a court of general jurisdiction. She was confirmed, but also engaged in a judicial election, and secured the first of three 10-year terms in 1992. She won the later terms in November 2001 and 2011.

Judge Quiñones has experience in both criminal and civil divisions, has presided over both jury and nonjury trials, and has supervised nearly every step in the trial process. Judge Quiñones has presided over approximately 1,500 criminal trials and 300 civil trials.

The American Bar Association's Standing Committee on the Federal Judiciary gave her a Majority ``Qualified'' and Minority ``Not Qualified'' rating.

Judge Schmehl received his B.A. from Dickinson College in 1977 and his J.D. from University of Toledo School of Law in 1980. Early in his career, he focused on criminal law, first as an Assistant Public Defender, then as an Assistant District Attorney. In these capacities, he tried all types of criminal cases, from DUI to murder. During his time as Assistant District Attorney, Judge Schmehl also had his own private civil practice, handling wills, estates, real estate matters, workers' compensation cases, and unemployment compensation cases.

In 1986, Judge Schmehl left private practice and the District Attorney's office to join the private law firm Rhoda, Stoudt, & Bradley. There he worked on insurance defense work and plaintiffs' personal injury cases. As a practicing attorney, he has tried approximately 200 cases to verdict, judgment, or final decision, serving as sole counsel or chief counsel in almost all of them.

In 1997, Judge Schmehl was nominated by both the Democratic and Republican parties for a judicial position in the Berks County Court of Common Pleas and later elected to the bench. In 2007, he was appointed to a 5-year term as President Judge in the same court and remains there today. Judge Schmehl has presided over approximately 180 cases that have gone to verdict.

The American Bar Association's Standing Committee on the Federal Judiciary gave him a majority ``Well Qualified'' and minority ``Qualified'' rating.

I also am going to take a couple minutes to discuss something I would have discussed in the Judiciary Committee meeting this morning, but because of our vote I was not able to do it.

First, I want to talk about the nominations hearing we had earlier this week on B. Todd Jones.

There is an open investigation in the Office of Special Counsel regarding very troubling allegations that Mr. Jones retaliated against a whistleblower in the U.S. Attorney's Office.

He is now up for confirmation for the Bureau of Alcohol, Tobacco, and Firearms.

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Mr. GRASSLEY. Last week Carolyn Lerner, the special counsel who leads the office, wrote us a letter explaining the status of the matter. She wrote that the parties had agreed to participate in mediation. She also wrote, ``If mediation is unsuccessful, the case would return to the Office of Special Counsel's Investigation Prosecution Division for further investigation.''

On Monday, she wrote us another letter confirming that the case was still open. We were told the reason we had to move forward with the hearing was because an April letter from the Office of Special Counsel was made public. The justification for holding the hearing was since that issue was made public, the nominee should have had an opportunity to respond at the hearing.

But, of course, there was nothing confidential in the Office of Special
Counsel's letter. I am not about to hide this issue from the public. It is relevant to our inquiry as to the qualifications of the nominee. Moving forward under these circumstances is not consistent with past committee practices. Of course, there are sensible reasons for that committee practice.

First, none of us knows what the results of that investigation might be. How are we supposed to make an assessment of the matter while it is still open? Second, how are we supposed to ask the nominee about the results of the investigation when the investigation has not been completed? And, third, how are we supposed to ask the nominee about an open investigation when the nominee will claim he cannot talk about it for that exact reason?

I would also note that an assistant U.S. attorney who filed the complaint against Mr. Jones gave his consent on Monday for the Office of Special Counsel to provide the complaint to the committee. I must say the allegations in the complaint are extremely troubling. So I began my questions by asking Mr. Jones about these allegations.

Here is what he had to say:

Because those complaints are confidential as a matter of law I have not seen the substance of the complaints nor can I comment on what they are. I have learned more from your statement today--

meaning, from this Senator,

than what I knew before I came here this morning about the nature and substance in the complaints.

In other words, Mr. Jones said he could not answer questions about the Office of Special Counsel investigation because it remains open. This is precisely why it is imprudent to move forward with a hearing in this way. At his hearing, I followed up with another question to Mr. Jones, had he ever taken adverse personnel action? He responded:

I'm not familiar with the OSC complaint. I'm at somewhat of a disadvantage with the facts. I can say that the privacy act considerations do fit into the picture.

As another followup, I asked him how we were supposed to ask about the complaint if he would not answer it. Here is what Mr. Jones said:

Well, quite frankly, Senator, I'm at a disadvantage with the facts. There is a process in place. I have not seen the OSC complaints.

So we have a problem.

So again, even though there is an open investigation, we were told we were going forward with the hearing so that Mr. Jones had an opportunity to answer the allegations. But whenever he was asked about it, he said he could not answer our questions because he had not seen the Complaint.

So, my point about the hearing being premature was overwhelmingly proven.

I also want to make a few comments about Tony West, nominated to be the Associate Attorney General. He is currently the Acting-Associate Attorney General and has generally done a good job. However, I remain concerned about his time serving as the Assistant Attorney General for the Civil Division.

He was involved in the quid pro quo deal between the Department and the City of St. Paul, Minnesota that was orchestrated by Assistant Attorney General Tom Perez. That quid pro quo involved the Department agreeing to decline two False Claims Act cases pending against the City of St. Paul in exchange for the City dropping a case pending before the Supreme Court.

Perhaps the most concerning part to me is that Mr. West essentially let Tom Perez take control of the Civil Division and cut this deal which hurt the whistleblower, Frederick Newell, leaving him to fight his case all alone. This is not how I expect the Department to treat good faith whistleblowers.

On top of all that, I believe it is contrary to the assurances that I was given by Mr. West that he would protect whistleblowers and vigorously enforce the False Claims Act when we held his confirmation hearing in 2009. If this nominee is ultimately confirmed, I sincerely hope he does not let politics within the Department control, instead of supporting good faith whistleblowers who stick their necks out.

I also wanted to address the nomination of Ms. Caproni, to be a District Judge. I have concerns over the fact that I made a request to the FBI over 6 years ago, asking for documents regarding exigent letters. In March 2007, Chairman Leahy and I requested copies of unclassified emails related to the use of National Security Letters issued by the FBI.

I only received a few of these emails, and they were heavily redacted, so in 2008 I asked for the rest. Ms. Caproni, was general counsel of the FBI at the time and told me that the documents I was waiting for were on her desk, awaiting her review.

Well, it is now 2013 and as of her hearing, I had never received these documents.

I asked Ms. Caproni about this in her hearing and she had no specific recollection of this request.

So, I asked her again in writing. This led to a set of FOIA documents being produced, which are a poor substitute for properly answering a committee request. It also raises further questions as to why it took 6 years and why Ms. Caproni told me years ago that she was working on responding to our request.

I have followed up with the FBI with specific requests regarding Ms. Caproni's involvement in the matter. Therefore, while I did not hold Ms. Caproni's nomination in committee, I reserve my right to do so on the Senate floor.

Concerning S. 394, the metal theft bill that we reported out this morning, I appreciate the changes that the sponsors made at my request to the criminal portion of the bill. The nature of the offense is clarified, and limited to the federal interest of critical infrastructure.

The bill also now requires criminal intent as an element of the proposed offense. The negligence standard in the bill has been eliminated.

However, I still have a number of concerns with this bill. The reality is that theft is already illegal everywhere in the country.

So is receipt of stolen goods. That raises questions about the necessity of a new federal offense.

The civil provisions are also duplicative of many State laws. The regulatory elements of this bill apply to any transaction in specified metal products exceeding $100. In my opinion, $100 seems to be a very low threshold.

We should not impose federal obligations unless the transaction is of a significant amount.

States can enforce their own laws if they have enacted a lower threshold.

Some of the recordkeeping requirements are of questionable value. For instance, the recipient must record the license plate number and make of the car used to deliver the metal.

Although the sponsors agreed to reduce the maximum amount, the dealer still faces up to a $5,000 penalty if he knowingly commits a paperwork violation, unless it is minor. This is true even if the metal is not stolen. That strikes me as excessive.

And the sponsors declined to accept the changes that I sought in the civil provision, especially as enforced by the state attorneys general.

Those provisions effectively allow a private right of action, even a class action, to enforce these paperwork violations at up to $5,000 per violation.

Not only can federal authorities enforce the bill's civil authorities, but so can the States. If metal theft continues, then that diffuse authority undermines the ability of citizens to hold accountable the responsible level of government.

This would allow the States to bring these cases in friendly State courts and expand the number of cases by outsourcing them to private lawyers paid under contingency fees.

This leads to more enforcement than would occur if these cases had to compete for attention with other priorities that state attorneys general would bring.

Excessive government can derive not only from broad laws, but from overzealous enforcement. The bill sponsors rejected my request that suits by the State AGs be filed only in federal court, and that any federal actions would supersede them.

There should be transparency and accountability for these lawsuits that are brought under authority of federal law.

I had amendments to discuss in markup, but will not do that here. However, when the full Senate takes up the bill, I will not be able to support it in its current form. I hope to work with the sponsors to address the concerns I have with this bill.

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