Through Judiciary

Sonia Sotomayor has been confirmed by the Senate Judiciary committee with a vote of 13-6. Only Lindsey Graham joined all the Democrats in supporting her confirmation. With four Republicans on the record as supporting her on the floor of the Senate, her confirmation is assured. She will become the first Latina on the Supreme Court.

The near-united front against a qualified Hispanic really isn't going to help the GOP in the years ahead.

Supreme Court Nomination Live

Judge Sotomayor's hearings are happening as we speak. I have a busy day ahead of me and won't be able to follow them very much, but you can watch them live right here:



Like I said, I have a busy day, but I did want to acknowledge Sen. Feinstein's speech, which obliterated the conservative notion that "activist judging" only comes from the left. She laid out multiple cases where the conservative block set new precedents and overturned settled law, and intimated that John Roberts and Sam Alito essentially lied to Congress. It was a rare bout of partisanship from DiFi.

There will not be any questioning today, just opening statements from the members of the committee and Judge Sotomayor's opening comments.

The New Republican Point Man On Judiciary

In addition to everything else, Arlen Specter was the Republican ranking member on the Senate Judiciary Committee. His departure necessitated the GOP to choose a replacement, and given seniority issues and the inability for a member to repeat as chair or ranking member, it was not a clear-cut solution. After a weekend of discussion, Jeff Sessions won the job for the time being.

Sen. Jeff Sessions (R-Ala.) will take over the ranking member position on the Senate Judiciary Committee after striking a deal with his more senior colleagues over the weekend, sources confirm to The Hill.

Sessions and Sen. Chuck Grassley (R-Iowa) reached the deal that will allow the Alabama Republican to take over for Sen. Arlen Specter (D-Pa.), whose departure from the GOP last week left the committee without a ranking member.

Under terms of the deal, Sessions will serve as ranking member until the 112th Congress, when he will take over the ranking member post on the Senate Budget Committee. Current Budget Committee ranking member Judd Gregg (R-N.H.) is retiring at the end of the 111th Congress.

Grassley, the top Republican on the Finance Committee, will then become ranking member on the Judiciary Committee.

In the near term, Sessions will hold the ranking member position during the confirmation hearings for Obama's next Supreme Court nominee. Which means that the ranking member of the Senate Judiciary Committee at this important time was denied a federal judgeship by the same committee because of his racist past.

Sessions entered national politics in the mid-'80s not as a politician but as a judicial nominee. Recommended by a fellow Republican from Alabama, then-Senator Jeremiah Denton, Sessions was Ronald Reagan's choice for the U.S. District Court in Alabama in the early spring of 1986. Reagan had gotten cocky by then, as more than 200 of his uberconservative judicial appointees had been rolled out across the country without serious opposition (this was pre-Robert Bork). That is, until the 39-year-old Sessions came up for review.

Sessions was U.S. Attorney for the Southern District of Alabama. The year before his nomination to federal court, he had unsuccessfully prosecuted three civil rights workers--including Albert Turner, a former aide to Martin Luther King Jr.--on a tenuous case of voter fraud. The three had been working in the "Black Belt" counties of Alabama, which, after years of voting white, had begun to swing toward black candidates as voter registration drives brought in more black voters. Sessions's focus on these counties to the exclusion of others caused an uproar among civil rights leaders, especially after hours of interrogating black absentee voters produced only 14 allegedly tampered ballots out of more than 1.7 million cast in the state in the 1984 election. The activists, known as the Marion Three, were acquitted in four hours and became a cause c?l?bre. Civil rights groups charged that Sessions had been looking for voter fraud in the black community and overlooking the same violations among whites, at least partly to help reelect his friend Senator Denton.

On its own, the case might not have been enough to stain Sessions with the taint of racism, but there was more. Senate Democrats tracked down a career Justice Department employee named J. Gerald Hebert, who testified, albeit reluctantly, that in a conversation between the two men Sessions had labeled the National Association for the Advancement of Colored People (NAACP) and the American Civil Liberties Union (ACLU) "un-American" and "Communist-inspired." Hebert said Sessions had claimed these groups "forced civil rights down the throats of people." In his confirmation hearings, Sessions sealed his own fate by saying such groups could be construed as "un-American" when "they involve themselves in promoting un-American positions" in foreign policy. Hebert testified that the young lawyer tended to "pop off" on such topics regularly, noting that Sessions had called a white civil rights lawyer a "disgrace to his race" for litigating voting rights cases. Sessions acknowledged making many of the statements attributed to him but claimed that most of the time he had been joking, saying he was sometimes "loose with [his] tongue." He further admitted to calling the Voting Rights Act of 1965 a "piece of intrusive legislation," a phrase he stood behind even in his confirmation hearings.

It got worse. Another damaging witness--a black former assistant U.S. Attorney in Alabama named Thomas Figures--testified that, during a 1981 murder investigation involving the Ku Klux Klan, Sessions was heard by several colleagues commenting that he "used to think they [the Klan] were OK" until he found out some of them were "pot smokers." Sessions claimed the comment was clearly said in jest. Figures didn't see it that way. Sessions, he said, had called him "boy" and, after overhearing him chastise a secretary, warned him to "be careful what you say to white folks." Figures echoed Hebert's claims, saying he too had heard Sessions call various civil rights organizations, including the National Council of Churches and the Southern Christian Leadership Conference, "un-American." Sessions denied the accusations but again admitted to frequently joking in an off-color sort of way. In his defense, he said he was not a racist, pointing out that his children went to integrated schools and that he had shared a hotel room with a black attorney several times.

During his nomination hearings, Sessions was opposed by the NAACP, the Leadership Conference on Civil Rights, People for the American Way, and other civil rights groups. Senator Denton clung peevishly to his favored nominee until the bitter end, calling Sessions a "victim of a political conspiracy." The Republican-controlled Judiciary Committee finally voted ten to eight against sending Sessions to the Senate floor. The decisive vote was cast by the other senator from Alabama, Democrat Howell Heflin, a former Alabama Supreme Court justice, who said, "[M]y duty to the justice system is greater than any duty to any one individual."

Senate Judiciary has jurisdiction over election reform and the Civil Rights Division of the Justice Department, as well as their prosecution of voter fraud cases, by the way.

This is like someone who flunked the driver's test running the DMV.

Post-Souter Battle, Day One

First of all, let's put into some perspective the fact that David Souter's replacement will have long-term importance but not much near-term impact on shifting the ideological balance of the Supreme Court. Next session, no matter who is in Souter's chair, they'll still try to phase out the Voting Rights Act and use bizarre logic to meet their ideological goals (does Scalia know that HE was voted in unanimously? Is there "something wrong there"? You decide). So this isn't a completely consequential near-term pick.

Of course, that doesn't mean that Vice President Biden can throw a dart at a board in making his selection. And of course, it means that no matter who Obama picks, the hard right will demonize him or her as a commune-living hippie phreek who wants to personally deliver abortions from the bench. For the record, here's a fairly representative list of possibles.

The replacements: So who are the possibilities to replace Souter? Here’s our list, per NBC’s Williams, that we unveiled back in February, after we learned about Ruth Bader Ginsburg’s pancreatic cancer: Johnnie Rawlinson (9th Circuit Court of Appeals, African American woman), Leah Ward Sears, (chief justice of the Georgia Supreme Court, African American woman), Sonia Sotomayor (2nd Circuit Court of Appeals, Hispanic woman), Kim McLane Wardlaw, 9th Circuit, Hispanic woman), Diane Wood, (7th Circuit, woman, knows Obama from her time teaching at the University of Chicago), Jennifer Granholm (Michigan governor, woman), Merrick Garland, U.S. Court of Appeals, DC Circuit, Deval Patrick (Massachusetts governor, African American, Obama friend), Cass Sunstein (University of Chicago law professor, Obama friend).

I agree with Mark Halerpin, how dare there be so few white men on that list. The MAN's been keeping us Caucasian males down for too long. A world with a 7-2 male/female split on the Supreme Court ain't a world I want to live in.

Obama has generally offered good statements on his ideal Supreme Court justices, particularly in saying he wanted to find someone who could empathize with those "less powerful." There are supposed to be four "conservatives" and four "liberals" on the Court, but in reality you have four on the hard right and four on the center-left, and when it comes to corporate law the playing field is pretty much entirely tilted toward the business-friendly. So Obama would do well to change that dynamic and really start to shift the ideological balance somewhat.

However, there will be one major obstacle to getting a nominee through Congress. Despite the potential for 60 votes, despite the party switch of Arlen Specter - in fact, BECAUSE of the switch of Arlen Specter - getting nominees out of the Senate Judiciary Committee under current rules will be a practical impossibility, it appears.

Check out the Senate Judiciary Committee Rules:

IV. BRINGING A MATTER TO A VOTE

The Chairman shall entertain a non-debatable motion to bring a matter before the Committee to a vote. If there is objection to bring the matter to a vote without further debate, a roll call vote of the Committee shall be taken, and debate shall be terminated if the motion to bring the matter to a vote without further debate passes with ten votes in the affirmative, one of which must be cast by the minority.

Your current lineup of Republicans on the Senate Judiciary Committee:

Arlen Specter
Orrin Hatch
Chuck Grassley
Jon Kyl
Jeff Sessions
Lindsey Graham
John Cornyn
Tom Coburn

Which of these fellas do you think will be ready to provide the necessary one vote from the minority to bring things to a vote in the committee on tough questions now?

Don't think they wouldn't relish bottling up an Obama nominee in committee, and using all the lies sure to be served up by the Mighty Wurlitzer and the conservative noise machine to justify it. This rule can change if there's a new organizing resolution, but in order to make that bullet-proof, all 60 Democrats would need to be seated, and willing to vote in favor. Giving even more reason for the minority to block Al Franken. Giving Specter even more power should he decide to wank and vote against a new resolution.

In the Senate, there's ALWAYS a way to obstruct.

Frazzled

An accident on the main east-west freeway serving Los Angeles turned the Westside into a parking lot today. It took me about an hour and a half for what is normally a half-hour commute. What a mess. Tell me again about how funding for mass transit just isn't practical. There actually is funding through Measure R for increased transit services and proposed light rail into Santa Monica, which should roll in right around the time I retire.

Heard on the radio that Eric Holder was approved by the Senate Judiciary Committee, and on a 17 to 2 vote with 6 Republicans voting in favor. So much for bloodying the nose of the Obama Administration, Mr. Rove. That wasn't gaining any traction, as the economy is paramount on everyone's mind.

More as I collect myself.

...Here's the story. A head-on collision from a wrong-way driver kills two. I'm not even sure how you would be able to go the wrong way on the Eastbound 10 unless you turned around while on the freeway. Sounds like a terrible accident. This is also a brief for how brittle our infrastructure systems are, closing that freeway paralyzed the Westside this morning.

They Don't Know Halfway

After shrugging off Republican caterwauling about the Holder nomination, the only one the right seems to have any interest in making a stink over, Senate Judiciary Chairman Patrick Leahy is pushing back the hearing date a week, a kind of compromise.

The Senate Judiciary Committee will delay confirmation hearings for Attorney General nominee Eric Holder after all -- accommodating Republican concerns that the appointment was being rushed and more vetting of Holder's resume was needed.

In an announcement from his Senate office on Monday afternoon, committee Chairman Patrick Leahy said the hearings would be moved back from January 9 to January 15, giving Republicans more than "30 days from today" to consider Holder's qualifications.

I sincerely hope that Leahy doesn't think this will calm anybody on the other side of the aisle. In fact, there will be some talk that this "proves" the "bipartisan concern" with the nomination, and the perception that it's in trouble, and that Holder will have to endure even more scrutiny, perhaps a request for multiple confirmation hearings, etc. This is not necessarily about blocking Holder from becoming the Attorney General but elongating the process and throwing up doubt. They've de-mothballed Karl Rove to lead the effort:

On Dec. 1, just one day after Holder’s nomination, Karl Rove told the Today Show that Holder’s record “will be examined” because he was the “one controversial nominee“:

ROVE: He was deeply involved as the Deputy Attorney General in the controversial pardon of Marc Rich. … I think it’s going to be clearly examined, if for no other reason that people want to lay down markers that that kind of behavior is inappropriate. … But again, there will be some attention paid to this [...]

Today on MSNBC’s Chris Matthews Show, Washington Post reporter Ceci Connolly revealed that Rove is indeed “helping lead” the effort against Holder:

CONNOLLY: Word on the street is that Karl Rove is going to be helping lead the fight against Eric Holder when his nomination for Attorney General heads up to the Senate.

This is a textbook partisan ploy, designed to engender anger throughout the base and a whiff of illegitimacy to the Justice Department. Of course, that agency is already hopelessly compromised, so any effort to improve it or, ye gods, fire those burrowed deep inside the Department who are responsible for the politicization of the past few years, will then have a counterpoint in the figure of Holder, no matter how ridiculous it may appear.

It shouldn't be any surprise that the one cabinet post Rove is being tapped to sully and turn into a partisan brawl is the one that happens to be investigating him. There may or may not be merit to the idea that Rove wants to provide cover for Bush's pardons, but the Siegelman case threatens Rove where he lives, and he desperately needs to paint it as the rantings of a partisan liberal Justice Department. In fact, painting justice itself as partisan, putting it into the political arena, serves Republican needs in a variety of ways, devaluing the rule of law as just another he-said/she-said situation.

I think Leahy did the wrong thing by listening to these jackals. They have no interest in being mollified.

Grandstanding

Arlen Specter is a threatened incumbent. He wants to keep his job in the US Senate, but he faces challenges from the left and the right. A threatened politician is an unpredictable one. Thus you have him trying to make hay out of Eric Holder's confirmation hearings for Attorney General and his role in the Marc Rich pardon. Nobody much likes the Marc Rich pardon, so Specter probably thinks he gets plaudits from the right for challenging their favorite subject, Bill Clinton (this time by proxy), as well as not much heat from the left. It's ridiculous for Specter to say "questions must be addressed" when he can ask Holder personally, but what he wants is a big buildup to a contentious confirmation hearing where he can rail at the nominee and look all Senatorial. Patrick Leahy is having none of it but I expect that Specter will probably get his wish, or at the very least, if he hasn't delayed the hearings, he's raised the anticipation for them.

Because Specter will be primaried, he will be unpredictable and unreliable throughout the 111th Congress. He's no "moderate" to count on for anything.

Specter's Bullshit Compromise Goes Down? UPDATED: This Sucks.

I couldn't even find this except at the end of a completely different article, but this is a very interesting development:

Separately on Thursday, the Senate Judiciary Committee rejected legislation that would have protected telecommunications companies from civil lawsuits over helping the government eavesdrop on Americans' communications without court orders. The legislation would have made the government the defendant in such lawsuits, rather than telecommunications companies. The 5-13 vote sank the measure pushed by Sen. Arlen Specter, R-Pa., who hoped it could be a compromise in the dispute over whether to immunize the companies from lawsuits.

I can't seem to find who the 13 were to vote against it.

Scottish Haggis Specter (h/t emptywheel) had proposed this bullshit compromise and it went down in flames. Now, immunity actually PASSED the same committee a few weeks ago; Leahy just didn't report out that part of the bill. There are several options as to what this means:

a) SJC members know that Reid's bringing the bill with immunity to the floor;
b) SJC members would rather take their chances with immunity itself than a bullshit compromise;
c) Activism works and many on the SJC had a change of heart.

I'm leaning towards (a).

UPDATE: I appear to have been right. Reid is most likely to bring the version of the bill with telecom amnesty to the floor, but in a sneaky way, through substitute motions and the like. He'll basically make it impossible to pass anything without immunity in it.

The reason Reid is doing this in a way that requires 60 is because he wants to pass something. And the only way he can pass something is to pass exactly what the president wants...which includes immunity. So, he has decided to choose a path that will deceive us about whether or not he is honoring Senator Dodd's hold, and deceive us about whether he made a good faith effort to prevent immunity.

I am not happy to come to these conclusions, and the reality probably is that Harry Reid doesn't have the support within the caucus that he would need pursue a strategy of not passing a new FISA bill. The law will sunset in February and too many within the caucus are afraid to let the law sunset.

Nevertheless, we are being set up to not recognize this capitulation for what it is. And I am not happy about it.

UPDATE II: Greenwald has more. Chris Dodd is heroically coming off the campaign trail in Iowa, just 3 weeks before the caucuses, to lead a filibuster. But Reid has made it virtually impossible for that to be successful.

Worse still, Reid is completely disregarding the "hold" placed by Chris Dodd on any amnesty bill -- simply refusing to honor it, even as he respectfully honors literally scores of "holds" from GOP Senators such as Tom Coburn. And while Dodd is interrupting his campaigning to fly to Washington to lead the filibuster he vowed, Reid has ensured with scheduling manuevers that the filibuster will take place only over the weekend -- when all of the members are away raising money anyway and journalists aren't paying attention -- with the intent to try to force cloture once everyone returns on Monday.

There are two key objectives for today: (1) do as much possible to pressure Reid to honor Dodd's hold and (2) do as much possible to encourage the presidential candidates and others to actively support Dodd's filibuster, not merely in a cursory way, but through authentic leadership. At least as of now, Reid is the clear villain here, doing everything possible to enable the Bush/Cheney FISA agenda on telecom amnesty and surveillance powers, and doing everything possible, yet again, to ensure that Senate Democrats stand up to nobody except their voters and their base who put them in power.

Harry Reid must not be allowed to remain Majority Leader in 2008. It must not happen.

Contempt

In rare news of the Congress doing their job, the Senate Judiciary Committee has approved contempt citations for Karl Rove and Josh Bolten. Although, this is so far removed from the actual scandal to which it pertains (it was the US Attorney firings) that I don't think anyone remembers why they're being called, and thus politically it takes the shape of piling on needlessly, and becomes completely ineffective. Not to mention:

The criminal contempt resolutions now move to the Senate floor, although no action on them is expected until next year [...]

The House Judiciary Committee has also approved contempt resolutions against Bolten and former White House Counsel Harriet Miers, but Speaker Nancy Pelosi (D-Calif.) has not set a date for a floor vote yet.

There's a principle at stake here, of course, and that's the role of Congressional oversight, but this can easily be characterized as old news, because it actually is old news. Meanwhile the US Attorney for DC, who would normally represent Congress in any legal battle with the White House, won't enforce these contempt citations. And the Bush Justice Department is gearing up to suppress the vote in 2008, again, which was after all one of the prime motivations of the US Attorney firings.

The Latest Twist on FISA: A New "Compromise" That's Anything But

Yeah yeah, I know, Joe Klein is an idiot and a dishonest hack, and Time Magazine did its best to shield him from criticism, even rejecting numerous counterpoints from Democratic legislators who took issue with Klein's smears. This is all well-documented. Unfortunately, it's also irrelevant to the new heart of the matter on FISA. Arlen Specter is pushing a bullshit "compromise" that actually does pretty much the same thing as telecom amnesty would do.

And voila! your wishy-washy compromise (Specter's statement; the bill):

"The legislation substitutes the U.S. in place of any electronic communication service company which provided communications in connection with an intelligence activity that was authorized by the President between September 11, 2001, and January 17, 2007, and designed to detect or prevent a terrorist attack against the U.S." [...]

But here's the killer:

"nothing in the bill is designed to increase or diminish the ability of the Government to assert the States Secret privilege"

Given that much of BushCo's motivation to give the telecoms immunity relates to BushCo's own exposure for illegally wiretapping Americans, and given that the telecom lawsuits were so important because they provided an angle around State Secrets, this pretty much sinks the lawsuits anyway.

In other words, the government becomes the substitute defendant in all the telecom lawsuits, the government can still invoke state secrets, meaning the lawsuits are very likely to be squashed, and ipso facto, the telecoms get away with lawbreaking. And more important, we never learn the extent of the spying on Americans.

There's a clause in there that leaves the telecoms on the hook for any spying prior to 9/11, but for the most part, this would be the end of any opportunity to reveal the breadth and scope of the President's warrantless wiretapping program. If Bush decided it was legal, then the telecoms get away scot-free.

And this will be voted on in the Senate Judiciary Committee TOMORROW.

So, as much as I agree that Joe Klein is a dick, I wish Glenn Greenwald would step away from that for a moment and back to the destruction of the rule of law that's about to occur under all of our noses. Substitution is just a kinder and gentler word for retroactive immunity. It's the kind of "bipartisan compromise" that the Broders of the world will love, but which is actually a far-right effort to indemnify participants in the surveillance of Americans. This has broad consequences for the surveillance state and the future of civil liberties. Mr. Greenwald, your country needs you. Refocus.

Strike Up The Band, We Got Ourselves a Contempt Proceeding

We'll see how far they get with it, but Patrick Leahy is planning a vote in the Senate Judiciary committee on Thursday for contempt citations, which has been a slightly more anticipated event on Capitol Hill than the Sopranos finale.

Senate Judiciary Chairman Patrick Leahy (D-Vt.) has scheduled a committee vote Thursday on contempt resolutions against White House Chief of Staff Josh Bolten and former presidential political guru Karl Rove for failing to respond to subpoenas.

Under Judiciary Committee rules, the vote could be postponed for a week, but Leahy said he intends to move the criminal contempt resolutions as soon as possible. Last week, he rejected the White House's executive privilege claim in preventing Rove and Bolten from appearing before his panel, calling it "overbroad, unsubstantiated, and not legally valid," setting the stage for Thursday's showdown.

At least one of the top Democrats on the Committee is ready for this fight. The perpetual weak knees of the Democrats whenever anything close to challenging the President comes up is likely still operative, but not for Sheldon Whitehouse:

"There has not been a lot of case law on this subject. We've been going on for a long time off of Department of Justice [attorney general] opinions, and a certain amount of tradition, and how settlements and agreements in the past have shaken out. But the Bush administration has shown why it's actually important that there be a legal line drawn to hold them to, because they've redrawn all the executive lines. I think it'd be good for the process to get a court decision for once and for all on the subject so everybody knows where we stand. It'll eliminate a lot of the back and forth in the future."

It's important for these Senators to understand that this is a historic moment, with the relevance of their offices at stake. If they can't bother to fight for the separation of powers and the ability of the legislative branch to check the executive, what will they ever fight for? Whitehouse, at least, seems to get this, and is willing to push even beyond the current Administration's tenure to get a ruling for posterity.

Whitehouse doubted that the process -- the committee holding the White House in contempt, the full Senate following suit, the subsequent court fight and its resolution -- could be completed before the Bush administration ends. But he said he would see it through to its conclusion regardless of who's president. "It might be, frankly, that with the Bush administration out we'd get a better decision," he said. "We might have an administration that isn't trying to protect anything, and is just interested in the legal question."

It's not that Whitehouse expects that a court ruling on executive privilege will end executive-legislative struggles over its scope. But it would at least set a stable set of boundaries for its legitimate exercise, rather than leaving subsequent administrations free to expand it even further, he said. "The boundary of that debate has been expanded dramatically by the Bush administration, and it's important to get it back to where we're discussing things around some common principles that the court can establish," he said. "It should narrow the disagreement considerably if you've got an established legal framework in which you're having the discussion."

Right now we have a President who thinks that the only legitimate exercise the Congress should be allowed to serve is as an ATM. Today's press conference was not about Iran, it was about bellyaching over Iraq funding. What this contempt proceeding is about, in addition to getting to the truth of the US Attorney scandal, is reasserting the role of the Congress in our form of government. Nothing can be more important.

P.S.: It's amusing to me that Karl Rove is waddling around on his "please buy my book" tour, telling anyone who will listen about internal White House discussions on the 2002 Iraq resolution, and who was driving the debate in Washington, yet when the Congress wants him to answer questions on another Administration matter, suddenly he claims executive privilege. It's essentially privilege as a convenient blanket.

BREAKING: Patrick Leahy Is, Well, SOMETHING Of A Gangster

I'm blown away at how it went down in the Senate Judiciary Committee today. Greg Sargent picks it up.

Sources say Senator Russ Feingold offered an amendment that would have stripped telecom immunity from the bill, but it was defeated. Then Senator Arlen Specter, the ranking GOPer on the committee, offered a "compromise" amendment saying that in these lawsuits the Federal government, and not the telecoms, would be the defendants.

But because of a procedural difficulty Specter's amendment wasn't voted on -- and Senator Patrick Leahy, the chair of the committee, essentially went around Specter's amendment and moved to have a vote to report the bill out of committee without any telecom immunity in it. That passed along strictly party lines. And that's where we are.

I think there was a back-channel deal between Leahy and Reid. There is likely to be a floor fight over this, so telecom immunity is not dead. But Reid is apparently committed to filing a motion to proceed on the bill without telecom amnesty. This is not a slam dunk, as Glenn Greenwald notes.

Even under the best-case scenario -- namely, Reid introduces a bill which does not contain amnesty -- anyone can (and certainly will) offer an amendment to include amnesty in the bill, and no matter what happens, it will be necessary to find 41 Senators willing to support Dodd's filibuster to keep amnesty out of the bill. As indicated, today is a good result in that it's preferable for the bill to have left the Committee today without amnesty in it (especially given the 3 Democratic members' support for amnesty) -- and that's not nothing -- but there is no grand "victory" in the sense that there is now some huge hurdle to having the Senate's bill include amnesty.

It's easier to whip people over stopping an amendment than filibustering the whole bill, that's the improvement. Reid has every ability to limit amendments, by the way, he could also do that. I was inclined to give Leahy a lot of credit for procedural ju-jitsu (by putting through a Title I version of the bill, keeping telecom amnesty in Title II, and then only allowing Title I out of the committee), but I guess there's always an out. This is still anybody's ballgame, but civil liberties forces are in a better position today than yesterday.

UPDATE: The House passed their version of the bill, without immunity. And it's actually a half-decent bill. In addition, the House passed needed mortgage industry reform legislation with a veto-proof majority, and EVERY SINGLE DEMOCRAT voted for it.

Today, I like our Congress. It changes from day to day.

More Progressive Orgs. Push For Accountability On Feinstein

In addition to the buzz in the blogosphere about activist efforts to censure Dianne Feinstein for her votes with Bush Republicans on key issues, some of the top progressive organizations have DiFi in their sights. MoveOn is asking their California members to call Feinstein about tomorrow's vote in the Senate Judiciary Committee over the revised FISA bill, and tell her not to grant retroactive immunity to telecom companies who violated the law by handing over information to the Bush Administration.

Senator Dianne Feinstein is facing tremendous pressure from the Bush administration. Tomorrow, she will likely vote on whether or not to let the phone companies off the hook for helping the president illegally spy on the phone calls and emails of innocent Americans.

President Bush wants immunity for these companies to cover-up his own illegal actions. The pending lawsuits against companies like AT&T may be the only way we ever find out how far the Bush administration went in breaking the law.

We have to make sure Sen. Feinstein hears from us right away. Can you call Sen. Feinstein and tell her to vote against immunity for big corporations who break the law? Tell her that voters want accountability and oversight—not immunity.

Here's where to call:
Senator Dianne Feinstein
Phone: 202-224-3841

DiFi has already signaled her intention to allow telecom immunity for lawbreakers, but clearly she needs to feel the pressure. What is far more interesting is DFA's effort to have Feinstein removed from the Senate Judiciary Committee altogether.

In California, we have a law -- commonly called the three-strikes law. And, like all laws, I think it ought to apply to everybody -- including my Senator, Diane Feinstein.

Too many times Senator Feinstein has failed to represent the people of California. Now she has announced that this Thursday she will support President Bush for the third time in two months. And it all comes down to Senator Feinstein's role on the Judiciary Committee.

Strike One: A Bush nominee for the federal bench, Leslie Southwick has a long history of rulings in lower courts that violate equality laws. Feinstein cast a deciding vote to give him a lifetime seat.

Strike Two: Michael Mukasey, nominated for Attorney General, refused to say he would oppose torture. But Feinstein voted to send his confirmation to the Senate floor anyway.

Now she's poised for her third bad vote in a row, on a rework of the FISA Act -- the law that's supposed to protect us all against illegal wiretapping [...]

Please call Senate Majority Leader Harry Reid right now and demand he remove Senator Feinstein from the committee and replace her with a Democrat who will stand up to President Bush's abuse of power.

Senator Harry Reid
202-224-3542

As I've said, progressives in California are looking for ways to get DiFi's attention, and inform her that she works for the people of this state, not elites in DC. These are two national organizations working at the local level to do just that.

UPDATE: Incidentally, yes, you should call the Senate Judiciary members opposing immunity for lawbreakers. It would be unconscionable that we never get to the bottom of just what the Administration has been doing to our privacy in the name of security all these years.

The Grand Bargain: Not So Grand

So Scottish Haggis (h/t emptywheel) Arlen Specter is looking for a grand bargain on telecom immunity.

At a markup on a bill to overhaul the 1978 Foreign Intelligence Surveillance Act (FISA), Sen. Arlen Specter (R-Pa.) plans to offer an amendment that would make the federal government — instead of the phone companies — the defendant in about 40 pending lawsuits across the country.

The mark up starts Thursday and will continue next week.

“I think it’s very important that the courthouse not be closed so there can be a judicial determination to see if there have been any violations of privacy rights,” Specter said. “I think the telephone companies were good citizens, and should not suffer from what they did. And my idea is to have the government substituted as the party.”

This is completely ridiculous. The telecoms are already using this tactic in court, arguing that the law already grants this. The problem, of course, is that the government will merely use the state secrets privilege to ensure that nobody gets to the bottom of the actual lawbreaking here. Telecoms wouldn't be able to credibly invoke this, and courts usually allow the government wide latitude in keeping things secret. So the practical effect of Specter's bargain would be to keep the truth about what kinds of spying have been accomplished on American citizens hidden from view far into the future. And the only difference for the telecom companies, as Kagro X explains, is that they would be able to keep their legal fees now being spent on pushing the exactly same legal strategy through the courts that Specter would rule by Congressional fiat.

This is a giveaway to companies that should have known better. There is absolutely no reason to compromise. The law is clear and no person or corporation is above it. The markeup in the Senate Judiciary Committee has been delayed to next week; there's plenty of time to tell your representatives NO on telecom immunity.

Waa Waa Waa

I guess I didn't notice this yesterday, or it wasn't fully reported, but apparently Bush said that if Michael Mukasey isn't confirmed by the Senate, there won't be an Attorney General for the last 15 months of his term. Which is fitting, because the law means pretty much nothing to these guys.

"If the Senate Judiciary Committee were to block Judge Mukasey on these grounds, they would set a new standard for confirmation that could not be met by any responsible nominee for attorney general," Bush said in a speech at the Heritage Foundation, a conservative think tank.

"That would guarantee that America would have no attorney general during this time of war," the president said.

This is a familiar tactic, where Bush does things and then blames it on the Democrats. His veto of Iraq funding with a timeline meant that Democrats were blocking the funding. His stopping the SCHIP bill meant that Democrats were playing politics with children's health. And now, his refusal to bring up a new nominee means that Democrats are "allowing" the position of Attorney General to go unfilled.

That's crazy. But it absolutely show you where his priorities lay. Bush cannot allow anyone who specifically cites waterboarding as torture to be the nation's top law enforcement official. To me, that means he personally authorized the technique, and he would be subject to future prosecution in that case. I agree with emptywheel that I'm OK with this issue being framed as one about torture:

You see, events thus far have made it very important for Bush to get Mukasey approved. While David Addington may have thought it in Bush's best interest to push Mukasey to adopt the party line, they're now at the place where, if Mukasey is rejected, it will be because of Bush's torture policy. (Frankly, this is unfortunate from a principled perspective, since it means that the Senators don't care about the unitary executive more generally, but it works to our advantage politically.) The press has spun the rising tension to be entirely about the issue of torture, which makes it inconceivable that, if Mukasey is rejected, the narrative will be anything but torture. Which will shine a bright light on the torture policy itself, and some Soccer Moms who might otherwise be ignorant that men are being tortured in their names may just discover that their government is doing reprehensible things.

Mukasey's other answers on executive power are actually worse, and grounds for dismissal, but it's on torture where Bush could get frogmarched. That's why he's pushing so hard. And there are a few Senators - Feinstein and Schumer seem the most likely on the Judiciary Committee - who make succumb to the pressure. We'll see on Tuesday.

WH Offers Surveillance Docs To Senate Judiciary

This is both good news and bad news. The White House earlier demanded that no Congressional committee would see any relevant documents about warrantless surveillance until they agreed to grant immunity to the telecoms. Patrick Leahy and Arlen Specter refused to mark up the bill without seeing the documents, and would not agree to the automatic immunity grant as a reward for seeing them. The White House backed down, and will provide the documents - but only to Leahy and Specter.

The White House has offered leaders of the Senate Judiciary Committee access to legal documents related to the National Security Agency’s warrantless surveillance program, senators said Thursday.

But Senate Judiciary Chairman Patrick J. Leahy, D-Vt., said while the White House had offered the documents to both him and the panel’s ranking Republican, Arlen Specter of Pennsylvania, he was pushing for the entire committee to receive access to the documents. But he also said he would take advantage of the offer and review the documents.

Now, this is good news because the White House is on the defensive, and offering things beyond their initial demands - which the Congress could do all the time on any issue if they just held firm. In a few days, if Leahy rejects passing out the bill from committee without all of the members seeing the documents, the White House will back down.

This is bad news because the Intelligence Committee had the chance to review the documents and they still kept telecom immunity in the bill. They in part honored the deal in exchange for the documents, but few of them articulated actual problems with the program once they saw the documents, with the notable exception of Russ Feingold. The other problem is that everyone who you would worry about caving on this bill has connected telecom immunity to the lack of knowledge of the program. Steny Hoyer made a nice speech yesterday on the importance of restoring Constitutional government, wherein he said that the Congress would not give immunity to the telecoms without knowing what they did. In other words, you can reasonably assume that once he gets to know what they did, he may be fine with allowing them to have broken the law. Specter has framed the issue in this way as well.

So this slight concession by the White House means that this is happening faster than we imagined. That's Harry Reid's takeaway:

Senate Majority Leader Harry Reid, D-Nev., called the White House’s offer a “breakthrough.

“We’re going to get something done, and we need to do it before the end of this year,” Reid said.

Reid is making this all about "getting something done," rather than the relative merits of the bill. That's extremely worrisome.

All of this means that the urgency to contact everyone on the Judiciary Committee and tell them there must not be telecom immunity in the bill just got greater. Of course, there are members of the Intelligence Committee who are also on the Judiciary Committee, and we already know how they voted over there. Dianne Feinstein and Sheldon Whitehouse, I'm looking in your direction. Meaning that honoring the hold is just as important.

UPDATE: Chris Dodd's campaign has a citizen-generated whip count of members of the Judiciary Committee.



UPDATE II: Let it be known that the SJC has been asking for these docs for almost two years, with absolutely no success. Now, when tied to a bill that the WH really really wants, they relent partially, and what Leahy should learn is that they'll relent even more if he remains adamant about not reporting out the bill. This shows that the WH is desperate to move this thing forward with immunity. Now, whether that's just to protect some telecom buddies or that they've done something unspeakbly bad that we don't even know about yet, is the question.

The New Oversight

So the deal appeared to be this: we'll let you see information on how telecom companies broke the law, as long as you tell us in advance that they won't be held accountable for the lawbreaking.

Senate Judiciary Committee members yesterday angrily accused the White House of allowing the Senate Intelligence Committee to review documents on its warrantless surveillance program in return for agreeing that telecommunications companies should get immunity from lawsuits.

Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) and Sen. Arlen Specter (Pa.), the ranking Republican, said any such agreement would be "unacceptable," signaling that legislation granting immunity to certain telecom carriers could run into trouble. Leahy and Specter demanded that the documents, which were provided only to the Intelligence Committee, be turned over to the Judiciary Committee as well.

I'm sure the letter was extremely strongly worded this time. They probably even used British and Canadian suffixes.

This is not the way it works, people. Congress doesn't get to see documents ONLY if they promise nothing will happen as a result. That's a mockery of democracy and the separation of powers.

And the documents apparently reveal lawbreaking:

Sen. Russell Feingold (D-Wis.), a member of both the Intelligence and Judiciary panels, said in an interview yesterday that the documents revealed that the NSA program was illegal. He said the presidential authorizations and the Justice Department opinions do not make it legal. "That makes it an executive power grab that is not justified by the statute or by the Constitution," he said.

Feingold had not seen the documents, however, saying he based his assertion on briefings from his Intelligence Committee aide, who reviewed the documents for several hours last Tuesday.

"Everything he saw and reported to me would indicate that the terrorist surveillance program involved was illegal and not something permissible given the clear exclusivity language in the statute," said Feingold, referring to current law, which specifies that FISA, along with Title III of the 1968 Wiretap Act, shall be the "exclusive" means to authorize domestic wiretaps.

Congress should not do the work that corporations could easily have done back in 2001. The issues are pretty clear here; wiretapping Americans without a warrant is legal in the real world, no matter what internal memos in the White House claim to justify it. The lawsuits are the only lever we have left to find out the truth of this program, and the Congress wants to help the Bush Administration in shutting it down. The precedent of lawbreaking followed by immunity is awful.

The proposal marks the second time in recent years that Congress has moved toward providing legal immunity for past actions that may have been illegal. The Military Commissions Act, passed by a GOP-led Congress in September 2006, provided retroactive immunity for CIA interrogators who could have been accused of war crimes for mistreating detainees.

Legal experts say the granting of such retroactive immunity by Congress is unusual, particularly in a case involving private companies. Congress on only a few occasions has given some forms of immunity to law enforcement officers, intelligence officials and others within the government, or to some of its contractors, experts said. In 2005, Congress also approved a law granting firearms manufacturers immunity from lawsuits by victims of gun violence.

"It's particularly unusual in the case of the telecoms because you don't really know what you're immunizing," said Louis Fisher, a specialist in constitutional law with the Law Library of the Library of Congress. "You don't know what you're cleaning up."

Useful idiots like Jay Rockefeller are trying to make an argument that the burden is on the Administration and not the private companies to make sure the program is legal. That's ridiculous. If I steal a car, is the burden on the government and not me to make sure stealing is illegal?

It's almost incomparable that the Democrats are going along with this absolute destruction of the rule of law. They really are abdicating their own authority.

Every now and then, we are tempted to double-check that the Democrats actually won control of Congress last year. It was particularly hard to tell this week. Democratic leaders were cowed, once again, by propaganda from the White House and failed, once again, to modernize the law on electronic spying in a way that permits robust intelligence gathering on terrorists without undermining the Constitution [...]

As the debate proceeds, Americans will be told that the delicate compromises were about how the government may spy on phone calls and electronic messages in the age of instant communications. Republicans have already started blowing hot air about any naysayers trying to stop spies from tracking terrorists.

No one is doing that. The question really is whether Congress should toss out chunks of the Constitution because Mr. Bush finds them inconvenient and some Democrats are afraid to look soft on terrorism.

...it was a very frustrating week in Washington. It was bad enough having a one-party government when Republicans controlled the White House and both houses of Congress. But the Democrats took over, and still the one-party system continues.

Amen.

"The President can't immunize illegality"

That was kind of an interesting opinion for the next Attorney General of the United States to make. Actually, it's not interesting at all, but in the context of the Bush Administration...

It was regarding FISA. He said he hasn't really been briefed fully on the program. What? Has Bush talked to this guy recently? It's kind of astounding to me that he wouldn't have been briefed, but perhaps his security clearance hasn't gone through.

Mukasey is saying all the right things here.

Specter just asked if Mukasey would be willing to resign if the President tried to violate the Constitution. "The options are to talk him out of it or to leave." This simply doesn't seem like a Bush Administration appointee.

Missed Opportunity On Mukasey

I'm watching the beginnings of the Senate Judiciary Committee hearings (St. Lieberman of the Vapors is blathering on right now), and it's clear this is going to be an exercise in fluffery. This is going on in the context of a Justice Department that is almost completely lawless.

Mark Fuller, an Alabama judge appointed by George Bush as been accused of pension fraud, misuse of his office, perjury, criminal conspiracy and obstruction of the FBI's background check for the Federal Judiciary. These charges were made well before Fuller was assigned to prosecute Don Siegelman, former Democratic governor of Alabama.

The charges were submitted to the DOJ's public integrity section by a respected defense attorney who conducted a routine investigation prior to trying a major case. The charges were sufficiently credible to get judge Fuller removed from that case. However, he was allowed to preside over the Siegelman case. These charges of criminal activity were corroborated by signed documents by public officials involved in exposing the alleged pension fraud by Judge Fuller.

There are a series of questions already about the Siegelman case, and now the hand-picked judge is accused of fraud and misuse of his office. It's just inconceivable to me that Pat Leahy and the like in the Senate is talking about "the future." The past is illegal, and there are going to be very few opportunities to get to the bottom of what's been happening at the DoJ.

I'm somewhat heartened by the attempt to stop Steven Bradbury, as his tenure at the Office of Legal Counsel is specifically tainted by his advisory opinions on torture.

In September, the White House has declared that its “next priority this fall” is to obtain Senate approval for Steven Bradbury, “the man who is advising President Bush on the extent of his terrorism-fighting powers.” In 2005, Bradbury replaced Jack Goldsmith as head of the Justice Department’s Office of Legal Counsel (OLC) and has since been interim OLC chief.

Today, Sen. Dick Durbin (D-IL) expressed reservations about Bradbury. “What we know is troubling. Mr. Bradbury refuses to repudiate un-American and inhumane tactics such as waterboarding and mock executions. … There are also serious and unanswered questions about Mr. Bradbury’s role in NSA warrantless surveillance programs.” [...]

In July 2006, Bradbury testified before the Senate Judiciary Committee and proclaimed that “the president is always right.”

OLC is simply too small an office to pick this fight. It has outsized importance in the Bush Administration, acting essentially as an inside-the-White-House version of the Supreme Court, and a rubber stamp besides. But only using the Attorney General nomination as a leverage point will actually gain any attention. I just think it's a mistake to let the Administration skate on this without extracting a price.

Mukasey is saying all the right things, like "partisan politics plays no part in the bringing of charges." But it has, and those illegalities shouldn't be allowed to stand.

The Siegelman Case And The Politicization of Justice

Wingnut noise machine freak-outs like attacking a sick 12 year-old serve a useful purpose, regardless of the lies. The intent is to distract the media and even the progressive movement while the politicized federal government goes about their deceitful business. The quintessential example of this is the Don Siegelman case. Siegelman, the Democratic former governor of Alabama, was railroaded and convicted of corruption in office last year. Apparently, the lobbyist who "blew the whistle" on Siegelman had dealings with a lot of Alabama politicians, many of then Republicans.

On may 8, 2002, Clayton Lamar (Lanny) Young Jr., a lobbyist and landfill developer described by acquaintances as a hard-drinking "good ole boy," was in an expansive mood. In the downtown offices of the U.S. Attorney in Montgomery, Ala., Young settled into his chair, personal lawyer at his side, and proceeded to tell a group of seasoned prosecutors and investigators that he had paid tens of thousands of dollars in apparently illegal campaign contributions to some of the biggest names in Alabama Republican politics. According to Young, among the recipients of his largesse were the state's former attorney general Jeff Sessions, now a U.S. Senator, and William Pryor Jr., Sessions' successor as attorney general and now a federal judge. Young, whose detailed statements are described in documents obtained by TIME, became a key witness in a major case in Alabama that brought down a high-profile politician and landed him in federal prison with an 88-month sentence. As it happened, however, that official was the top Democrat named by Young in a series of interviews, and none of the Republicans whose campaigns he fingered were investigated in the case, let alone prosecuted.

The Siegelman investigation was clearly politicized, a fact stated by 44 former state Attorney Generals from both sides of the aisle. But this revelation calls things into question even further. It seems that the initial cause of the investigation included a lot of actionable information on Republicans - but that information was simply forgotten.

The prosecutor in the case claims that nothing untoward was done here - that Lanny Young's description of payments to Jeff Sessions were "legitimate." Does this sound legitimate to you?

Early in the investigation, in November 2001, Young announced that five years earlier, he "personally provided Sessions with cash campaign contributions," according to an FBI memo of the interview. Prosecutors didn't follow up that surprising statement with questions, but Young volunteered more. The memo adds that "on one occasion he [Young] provided Session [sic] with $5,000 to $7,000 using two intermediaries," one of whom held a senior position with Sessions' campaign. On another occasion, the FBI records show, Young talked about providing "$10,000 to $15,000 to Session [sic]. Young had his secretaries and friends write checks to the Sessions campaign and Young reimbursed the secretaries and friends for their contributions."

If true, Young's statements describe political money laundering that would be a clear violation of federal law.

This Time article is a blueprint for how the Justice Department has acted in the Bush/Rove era, as a political arm of the Republican Party. And we've seen this habit throughout the federal government. We've seen Scott Jennings briefing members of the General Services Administration about how they can help Republican candidates (Jennings, incidentally, resigned last week, right on the heels of this Time article, interestingly enough). We've seen the efforts to install a known vote suppressor, Hans Von Spakovsky, onto the Federal Election Commission. And now we're seeing it in this case in Alabama. There's a hearing scheduled about this in the Senate Judiciary Committee this week. Jeff Sessions sits on that committee. He must recuse himself. The Justice Department has refused to turn over any documents regarding the Siegelman case. How can the Democrats confirm someone to run that Department without them?