By Jeremy Herb
There appears to be little hope that blocked Navy undersecretary nominee Jo Ann Rooney’s fortunes will change in the Senate.
Several senators who are backing New York Sen. Kirsten Gillibrand's (D) push to take sexual assault cases outside the chain of command said Wednesday they also support her hold on Rooney, President Obama’s pick to be undersecretary of the Navy.
Gillibrand has slammed Rooney for her written statement at her confirmation hearing, where the nominee said the decision to prosecute cases should remain with commanders because they consider more than just evidence in deciding to prosecute cases.
“A judge advocate outside the chain of command will be looking at a case through a different lens than a military commander,” Rooney wrote. “I believe the impact would be decisions based on evidence, rather than the interest in preserving good order and discipline. I believe this will result in fewer prosecutions and therefore defeat the problem that I understand it seeks to address.”
Gillibrand said this week that Rooney’s statements and her clarification are “prohibitive,” suggesting there was little the Pentagon could do to change her mind.
“In her view, if the perpetrator is more popular, more important to her unit, better valued, then it’s OK not to prosecute,” Gillibrand said at a press conference on her sexual assault legislation Wednesday. “That’s unacceptable.”
Other senators at the press conference quickly jumped in to back up Gillibrand’s hold and criticize Rooney.
“Who wants to put someone in a position of power who thinks its just fine to ignore the evidence in sexual assault cases?” said Sen. Barbara Boxer (D-Calif.).
“Good order and discipline, morale and personal factors, they all have a role to play — just as they do in civilian system — on sentencing, the decision of punishment, not on whether there was a crime or if it should be prosecuted,” Sen. Richard Blumenthal (D-Conn.) said. “The important part about her remarks, and then repeating them, is it reflects a view of criminal justice that is wholly unprofessional.”
Boxer suggested that Rooney’s hold was “the best way to prove to America and to our colleagues that Kirsten Gillibrand is so right on this.”
“We have to change the system,” she said.
Gillibrand's hold could be broken in the Senate with 60 votes, but that would require Senate Majority Leader Harry Reid (D-Nev.) to schedule a vote over Gillibrand's objections, an unlikely scenario given she is a member of his party.
Rooney has attempted to clarify the position she laid out in her written statement, arguing that she does not believe commanders should ignore evidence in deciding whether the prosecute cases.
“The implication was not that the commander wouldn't [look at evidence], but a commander also has some additional tools that they could use that are non-judicial punishment in order to be able to address that command climate and change the attitudes towards it,” Rooney said at her confirmation hearing last month.
Rooney’s position is also reflected in past comments from Chairman of the Joint Chiefs Gen. Martin Dempsey, who said at a sexual assault hearing in June that character does play at least a minor role in prosecution decisions — but that it would not overrule evidence.
“I think we were pretty clear, I thought, that the decision to prosecute was made in the context of the overall character of service but always in light of the crime and the evidence that supported the criminal prosecution,” Dempsey said.
“Character generally, in my own experience now, character generally comes into sentencing and punishment far more than it does into the decision to prosecute.”