Arkansas GOP Sen. Cotton holds up Michigan U.S. attorney nominee Totten, others

Melissa Nann Burke
The Detroit News

Washington — A Republican senator from Arkansas continues to hold up the confirmation of nominees for U.S. attorney including Michigan's Mark Totten over unrelated demands for information he's made of the Department of Justice. 

GOP Sen. Tom Cotton stood and objected Wednesday afternoon when Senate Democrats moved to dislodge his holds on six nominees for U.S. attorney and two for U.S. marshal. Totten was nominated by President Joe Biden in November to be U.S. attorney for the Western District of Michigan.  

Cotton said he's blocking all Department of Justice nominees because he's not had a sufficient response from the department to his questions about why it's not paying the legal bills of four U.S. marshals in Portland who were sued by protesters over their actions during public demonstrations in 2020.

"I'm sorry if your lawyers have to wait for a week or two to get confirmed to the U.S. attorney's position," Cotton said on the Senate floor. "I'm worried about four heroes who defended federal property from left-wing street militias. So yeah, I will object."

U.S. Sen. Tom Cotton, R-Arkansas

Cotton said the marshals deserve better and the DOJ should either agree to represent them in the lawsuits they face or provide a "satisfactory, fact-based" answer about why they won't.

"Maybe some of my Democratic colleagues could call (Attorney General) Merrick Garland or Vinita Gupta and ask them for such an answer. Or maybe just call them and say, 'Why don't you represent these four marshals?'" Cotton said. "That seems like an obvious, satisfactory outcome for everyone here." 

Moments earlier, Cotton had objected when Sen. Dick Durbin, an Illinois Democrat, had asked the Senate to approve the group of eight nominees en bloc by voice vote — which is traditionally how the Senate handles most U.S. attorney and marshal nominees. 

Durbin blasted Cotton's reasoning, saying that while GOP lawmakers purport to support law enforcement, he was denying the nominees "an opportunity to make community safer across America at a time of high crime."

"Try to follow that logic, if you will. The senator is so committed to law enforcement, he is so committed to U.S. marshals, he won't let us appoint people to fill vacancies," said Durbin, who chairs the Judiciary Committee. 

"Why are we in such a hurry? We're in the second year of this president's administration. It's time to fill these vacancies." 

The Judiciary Committee last month advanced the nomination of Totten of Kalamazoo to the full Senate. Totten has served as Gov. Gretchen Whitmer's chief legal counsel since 2019 and was the 2014 Democratic nominee for attorney general in Michigan, losing to Republican Bill Schuette by 8 percentage points. 

In addition to Totten, Cotton is also holding up nominees from Ohio, Minnesota, Nevada, Georgia and Illinois.

Senate Majority Leader Chuck Schumer, D-New York, stressed that the nominations are not political positions, noting that all of former President Donald Trump's picks for U.S. attorney and marshals were confirmed by unanimous consent. 

Schumer said that if Cotton doesn't drop his holds, he would file cloture on all the nominations and move forward with a "dizzying number" of roll call votes, which could tie up the chamber for hours and lead to late nights, he said.

"Most of us don't want to go down that road. We don't have to. The overwhelming majority of Democrats and Republicans want to preserve the decades of precedent and comity that has enabled us to work together on nominees," Schumer said.

"So let me say for one last time, delaying the appointment of U.S. attorneys and U.S. marshals over cheap partisan games ultimately makes Americans less safe. It weakens law enforcement."

During the debate, Cotton countered that he wasn't hurting law enforcement but standing up for them, claiming that the marshals in Portland face financial bankruptcy and ruin because the Department of Justice won't represent them. 

"In many cases, (it) won't even give them an answer or explain why the representation was denied. When I learned this, I demanded answers," Cotton said. "Some of you might say, 'Well, maybe there's investigations underway.' 'Maybe these officers engaged in misconduct.' We don't know. They won't give us an answer."

He reported that all four marshals at issue are currently on unrestricted active duty in the Special Operations Group for the U.S. Marshals Service, suggesting that for them to have that assignment, top officials at DOJ must not have doubts about their fitness to serve or their actions at the Portland courthouse during the 2020 protests.

Durbin said the Department of Justice had responded to Cotton's letter about the marshals, but that Cotton "just didn't like the response — it didn't go far enough."

Durbin read from the DOJ's response saying it represents or has paid for private counsel to represent 70 of the federal employees sued in connection with the events in Portland, while denying one request for representation and still reviewing others. 

Durbin also said Cotton was ignoring a complicating factor, which is that a routine confidentiality waiver is needed from the individual marshals at issue before the government may discuss their cases with Cotton or others.

Durbin asked Cotton if he had a confidentiality waiver for the marshal whose representation was denied. Cotton replied that he did not.

"But I know the response that the marshal received was that the denial of representation was not in the interest of the United States," he said. "No more facts, no more explanation."

Sen. Sherrod Brown, D-Ohio, said that Cotton should get the answers he's seeking from the Department of Justice, but the solution for his disagreement with the DOJ "is not that the 6 million Ohio citizens pay a price." 

Cotton didn't budge in his opposition during more than an hour of floor debate, engaging in back and forth with at least a half dozen Democrats.

"I will not agree to fast track political nominees to the department when the department is hanging out to dry career law enforcement officers," he said. 

The Senate is set to depart for a weeklong recess next week.