Assistant Attorney General Tom Perez might be nominated to lead the Department of Labor, but the inner workings of the Department of Justice took center stage at his confirmation hearing April 18 on Capitol Hill.
Perez tangled with several Republicans on the Senate Committee on Health, Education, Labor and Pensions, who had concerns about Perez’s involvement in a "secret deal" to settle a whistleblower case in Minnesota. They also questioned Perez about the department’s aggressiveness in challenging South Carolina’s voting rights law, and about the ethics of sending emails to reporters providing nonpublic information about case resolutions.
Ranking member Senator Lamar Alexander, R-Tenn., said he has concerns about why Perez orchestrated the deal with St. Paul, Minn., to drop two False Claims Act cases — where the government potentially could have recovered $200 million — in exchange for the city dropping an appeal to the U.S. Supreme Court related to the disparate impact legal theory. When Perez took over the Civil Rights Division, in 2009, he said the DOJ had "dusted off" that legal theory.
At the April 18 hearing, Alexander called Perez’s actions in the St. Paul settlement "an extraordinary amount of wheeling and dealing" that was "manipulating the legal process" in a way that "is inappropriate for an assistant attorney general." Congressional Republicans released a 65-page report on the case last Monday that was critical of Perez.
Committee Chairman Senator Tom Harkin, D-Iowa, a lawyer, decided to step through the case point-by-point, allowing Perez to explain for the first time publicly how the Justice Department made the now-controversial global settlement.
Perez said that it was St. Paul, and not the Justice Department, that first brought up the possibility of a global settlement. Perez said he consulted with ethics and professionalism experts in the Justice Department, who said it was appropriate as long as Tony West, then the Civil Division chief, retained the ultimate decision on the deal.
And Perez said that Mike Hertz, the late Justice Department’s pre-eminent expert on the False Claims Act, "had a very immediate and visceral reaction that it was a weak case" before deciding not to join the whistleblower. The DOJ also declined to intervene and then dismiss the case, which let the whistleblower have his day in court.
"Based on these facts, Mr. Perez, I do not know what the controversy is," Harkin said. "I think it’s clear the department made the right call."
In general, committee Democrats went easy on Perez at the hearing. Senator Barbara Mikulski, D-Md., called him "one of Maryland’s favorite sons," touting his experience as the head of Maryland’s Department of Labor, Licensing and Regulation. Harkin said Perez has "the strongest possible record of professional integrity."
Senator Ben Cardin, D-Md., introduced Perez and pointed out how the Senate had already confirmed him as an assistant attorney general at the DOJ. "He’s been through the vetting process," Cardin said.
Cardin also said Perez had turned around major problems in the Civil Rights Division, another concern for Republicans. The House Judiciary Committee spent several hours April 16 spotlighting the deep polarization and mistrust found among lawyers at the division in last month’s report by the inspector general and connecting it with Perez.
At the April 18 confirmation hearing, Perez touted his 13 years of experience at the Justice Department, and focused on a history of working with both political parties. He noted that he worked at the DOJ under four presidents (Ronald Reagan, George H.W. Bush, Bill Clinton and now President Obama). And he pointed out that one of his "mentors and supporters" is John Dunne, who served as Civil Rights Division chief under Bush.
"So much of what the division does is nuts-and-bolts law enforcement that may not make the headlines, but is critically important in making communities safer and ensuring a level playing field," Perez testified.
Perez touted the accomplishments at the division in the past four years. The DOJ, he said, has increased by 40 percent the number of human-trafficking cases, stepped up hate-crimes enforcement and work for people with disabilities, and recovered more than $50 million for service members whose homes were improperly foreclosed on while deployed.
Perez also noted the bipartisan consensus between Senator Orrin Hatch, R-Utah, and the late Senator Edward Kennedy, D-Mass., when it came to hate crimes and children’s health insurance.
Perez testified his priorities as Department of Labor secretary would be a collaborative and bipartisan approach to reauthorize the Workforce Investment Act, as well as work on pension security and wage-and-hour laws.
The committee will hold an executive meeting to consider Perez’s nomination ThursdayApril 25.
Todd Ruger is a reporter for The National Law Journal, a Legal affiliate based in New York. This article first appeared on The BLT: The Blog of Legal Times. •