The Senate Judiciary Committee has sent David Ogden's nomination for deputy attorney general to the full Senate for a vote.
The committee voted 14-5 this morning to endorse Ogden for the No. 2 position at the Department of Justice. The vote came three weeks after Ogden, a partner at Wilmer Cutler Pickering Hale and Dorr, went before the committee for his confirmation hearing.
Republicans exercised their option to delay, by one week, votes on two other nominations: Elena Kagan for solicitor general and Thomas Perrelli for associate attorney general. Chairman Patrick Leahy (D-Vt.) could have forced votes on those nominations by scheduling them for an earlier meeting, but he chose not to. As a result of today's delay, Leahy said he'll be giving Republicans less time to consider committee action in the future.
All Democrats voted in favor of Ogden's nomination. Those opposing Ogden were Sens. Tom Coburn (R-Okla.), John Cornyn (R-Texas), Chuck Grassley (R-Iowa), Orrin Hatch (R-Utah), and Jeff Sessions (R-Ala.).
Hatch noted that he usually defers to a president's nominees, including Attorney General Eric Holder Jr., whom he supported even before Holder's nomination was announced. But, calling Ogden's nomination a "close call," he said he was troubled by Ogden's representation of the pornography industry and other controversial clients in private practice.
"Mr. Ogden has consistently taken very liberal positions over a long period of time on issues that are very important to me," Hatch said.
Acknowledging that his objection is an exception to the general distinction between a lawyer's personal views and those of his clients, Hatch added, "The pattern here is so consistent and the record is so long that it does give me pause."
Leahy said Republicans had rejected the same argument when made by opponents of Chief Justice John Roberts Jr. at his confirmation hearing. "The question is, Did he represent them honestly and straightforwardly?" Leahy said.
Sen. Arlen Specter (R-Pa.), the committee's ranking Republican, said the committee had received 11,000 phone calls, letters, and other contacts opposing Ogden. But, citing an opinion piece in Legal Times, he said he was swayed by the principle that a client's views cannot be attributed to a lawyer.
Ogden's clients were a focus of his confirmation hearing, though much of his work for the pornography industry took place in the late 1980s and early 1990s and focused on First Amendment litigation. In reply to those concerns, Ogden cited his more recent work for a variety of clients, including major corporations, and a case in which he won protections for victims of child abuse who testify in open court.
A Senate vote on the nomination has not yet been scheduled, but it could come within days.