Senate Rejects Amendment to Keep Senate Confirmation of BJS Director

By Steve Pierson posted 06-30-2011 09:22

[6/30 update: The Senate yesterday passed S. 679 with the fixed, five-year term for the Census Director but with the provisions removing Senate confirmation of the BJS and NCES heads intact. The Washington Post reported today that the House intends to pass the bill: "Senate votes to streamline confirmation process."]

The Senate today rejected an amendment from Senator DeMint (R-SC) to maintain Senate confirmation for the Director of the Bureau of Justice Statistics on a largely party-line vote of 41-57. Only Republicans voted in favor of the amendment. Senator Grassley (R-IA), Ranking Member of the Senate Judiciary Committee, cosponsored the amendment. See below for Senator DeMint's comments in favor of the amendment and Senator Schumer's comments opposed.

The amendment was to Senator Schumer's bill, S. 679, "The Presidential Appointment Efficiency and Streamlining Act of 2011," discussed in a May 12 blog entry, "Senate Bill gives Census Director a Fixed Five-year Term; Removes Senate Confirmation for BJS and NCES Heads."

ASA joined with 7 other organizations in sending a letter to all Senators regarding the BJS and NCES provisions of S. 679. The letters to Majority Leader Reid and Minority Leader McConnell are posted at and They read, in part,
we urge that the Senate appreciate the distinctiveness and centrality of federal statistical agencies and, with the same bi-partisan spirit that led to this bill, remove both NCES and BJS heads from S. 679.
Senator DeMint's comments in support of S. Amdt. 510, his amendment to keep Senate confirmation of BJS Director:
"It is very important that this particular position, this nominee for this position, be vetted and confirmed by the Senate.

"It is often said statistics don't lie; people do. Particularly in this business, we have seen one set of statistics be interpreted and publicized in totally different ways, and that is why this position is so important. The role they have is critical. In a democracy and in a free country, one of the most important aspects to protect against is that risk of the government becoming a propaganda machine.

... "[BJS statistical] information is acted on by local, State, and Federal officials. Lots of our laws are shaped and based on this information. Statistics are only as valuable as the reputation of the statistician, and that is what this position is.

"Every Member of this body knows how to write a question so you get the answer you want. If we are going to have a Bureau of Justice Statistics, don't we want the public to have some level of trust in the data they publish? If we just put some political hack in this position--as, unfortunately, has happened over administrations of both parties, not necessarily for this position but we know in some positions--it would totally discredit what this person does. So do we want the public to think they are cooking the books to promote policy ends on issues such as gun control, hate crimes, racial profiling, immigration, drug policy, and so forth? If we cannot absolutely trust the impartiality of the management of the Bureau, we should abolish it and give the money back to the taxpayers.

"We know we are $14 trillion in debt. Our Nation is on the brink of financial collapse. My constituents have no interest in borrowing money from the Chinese to fund the Bureau to compile crime statistics if we can't trust the numbers. If there is even a hint of bias of a political agenda or of the head of this Bureau being friendly to the perspective of whatever party is in the White House, then we should abolish the agency.

"In the past, those on the right have been suspicious that the Bureau of Justice Statistics has had a bias against gun rights and against the first amendment. Whether that is true, who knows. BJS statistics are used to form policy decisions. If the agency becomes a tool of the party in power, that will no longer be the case.

"When James Lynch, the nominee for the Director of the Bureau of Justice Statistics, was asked in his confirmation hearing what the biggest challenge for the Bureau of Justice Statistics moving forward was, he responded: ``I think the biggest challenges of the Bureau of Justice Statistics moving forward are the perennial challenges to a statistical agency; that is to say, to maintain its credibility as an independent Federal statistical agency.''

"It is important we hear that. It is important Americans hear that, and we will not have that opportunity if this position is no longer confirmed.

"It is not often that you hear a nominee suggest that the No. 1 challenge he faces in assuming a position is to maintain the credibility and independence of the agency he is about to run. But, as Dr. Lynch said, that is the nature of a statistical agency, and it is precisely the reason why we should not remove this position from the confirmation process.

"The questions at the live hearing and the submitted written questions appropriately focused almost exclusively on this issue of credibility, independence, and accountability.

"How do we protect the Director from political influence and tampering by the executive? There was discussion about ways to restructure the office to make it more independent and further reinforce its independent roll. There was discussion of moving the director to a 6-year term to further reinforce his independence, a proposal that the nominee supports. Of course, a 6-year term would imply Senate confirmation.

"In every way possible, the committee and nominee discussed ways to solidify the independence of the position and protect it from political influence. In the context of these discussions, it was once suggested that we remove the position from the confirmation process.

"With all the nominees who are confirmed in the Senate with no debate or vote, it would seem the confirmation process is serving a purpose.

"First, there are things that happen behind the scenes to vet and review these nominees and their backgrounds. Unfortunately, as we have seen, the President, in some cases, with what we call czars in other positions and recess appointments, has sidestepped that. That has reduced the credibility in these positions, but let me just focus again on this one position.

"We never want the American Government to be accused of being a propaganda machine, as we see from governments all over the world. This one area of statistics, where they are disseminating information all over the country that so many respond to, needs to be credible and independent. I encourage my colleagues to keep this one position in the confirmation process so we will have an opportunity to make sure that, regardless of which party is in power, we have a credible, independent voice dealing with these statistics."

Senator Schumer's comments opposed to S. Amdt. 510:
"this amendment is opposed to the great spirit of comity behind the underlying bill.

"I would like to remind my colleague from South Carolina that the bipartisan working group labored over every decision we made. Far from lifting our index fingers to the wind, we carefully debated the nuances of the changes that were ultimately proposed.

"The change the Senator from South Carolina finds fault with involves the Bureau of Justice Statistics. Let me tell you about this position. The Director of the Bureau of Justice Statistics reports to the Senate-confirmed Assistant Attorney General for the Office of Justice Programs, who then reports to the Senate-confirmed Associate Attorney General, who then reports to the Senate-confirmed Deputy Attorney General, who--you guessed it--reports to the Attorney General, also confirmed. How much more oversight do we need for one man? Is four levels of congressional oversight not enough?

"It is clear to me that this amendment is really designed to hamper our goal of improving the way the Senate functions. After all, there are four similar positions at the Department of Justice with parallel lines of reporting that we plan to remove from Senate confirmation, but the Senator from South Carolina does not take aim at those. Simply put, this is a prime example of the type of amendment that slows the Senate down, the type of amendment that is really aimed at preventing the passage of this bill.

"The number of Senate-confirmed positions has increased by hundreds over the last few decades. As you know, this proliferation has slowed the confirmation process to a near standstill. What used to be a flowing, functioning faucet now trickles.

"This position is one of those midlevel positions that should be removed to free up our process so we can focus our time on the positions that are more senior, that do not report to so many other levels of Senate-confirmed positions. Removing Senate confirmation for this position does not in any way weaken our constitutional advice and consent power or give any extra power to the President. This power was given to us to be used to confirm the most senior policymaking positions, and the President has power to appoint his midlevel and lower level appointees."