Senate Judiciary Committee

Sessions Attacks Kagan for Lack of Legal Experience

The Elena Kagan confirmation hearings began at 12:30 p.m. today, and Jeff Sessions, the ranking minority member on the Senate Judiciary Committee, wasted no time in attacking the nominee for having “barely practiced law.” It seems the senator is once again conveniently overlooking Ms. Kagan’s tenure as Solicitor General, her service as Associate White House Counsel, and her years in private practice - all of which is certainly very real legal experience.

Mr. Sessions also appears to have forgotten that the reason Ms. Kagan is not already a judge is that in 1999, after then-President Clinton nominated her to the U.S. Court of Appeals for the D.C. Circuit, the Judiciary Committee’s chairman, Republican Senator Orrin Hatch, refused to schedule confirmation hearings for her, effectively killing her nomination. So Republicans are now attacking Kagan for not having the experience that in fact they prevented her from gaining.

Let’s keep in mind some former justices who, like Kagan, had never served as judges prior to being named to the Court: William Rehnquist, Earl Warren, Louis Brandeis, Charles Evans Hughes, Felix Frankfurter, Hugo Black, Lewis Powell, Byron White.
 

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Leahy Brings Citizens United to the Forefront in Kagan Hearings

In his opening remarks in Solicitor General Elena Kagan’s Supreme Court confirmation hearings, Senate Judiciary Committee chairman Patrick Leahy put the Court’s decision in Citizens United v. FEC at the front and center of the debate.

It is essential that judicial nominees understand that, as judges, they are not members of an administration. The courts are not subsidiaries of any political party or interest group, and our judges should not be partisans. That is why the Supreme Court’s intervention in the 2000 presidential election in Bush v. Gore was so jarring and wrong. That is why the Supreme Court’s recent decision in Citizens United, in which five conservative Justices rejected the Court’s own precedent, the bipartisan law enacted by Congress, and 100 years of legal developments in order to open the door for massive corporate spending on elections, was such a jolt to the system.

We hope to hear a lot more about Citizens United in the next few days—a ruling that a recent PFAW poll showed that 77% of Americans want to amend the Constitution to undo.
 

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Federal Judge Ends Drilling Moratorium

This afternoon, we have another illustration that when the pull of profits goes up against protecting public safety, the personal leanings of our federal judges really do matter. The Associated Press reports:

A federal judge struck down the Obama administration's six-month ban on deepwater oil drilling in the Gulf of Mexico on Tuesday, saying the government rashly concluded that because one rig failed, the others are in immediate danger, too.

The White House promised an immediate appeal. The Interior Department had halted approval of any new permits for deepwater drilling and suspended drilling of 33 exploratory wells in the Gulf.

Press Secretary Robert Gibbs said President Barack Obama believes strongly that drilling at such depths does not make sense and puts the safety of workers "at a danger that the president does not believe we can afford."

Judge Martin Feldman, a Reagan appointee, said, “What seems clear is that the federal government has been pressed by what happened on the Deepwater Horizon into an otherwise sweeping confirmation that all Gulf deepwater drilling activities put us all in a universal threat of irreparable harm."

To be clear, in reaction to the worst oil spill ever in US waters—one that was caused by reckless decisions made by a company that had to answer to very little government regulation—the president is halting similar drilling projects until investigators can ensure that they are safe. That doesn’t exactly seem overly rash.

Yesterday, Senate Judiciary Committee Chairman Patrick Leahy said that he’d be sure that Elena Kagan is asked a lot about the role of the courts in cases involving the accountability of oil companies in her upcoming Supreme Court confirmation hearings. Today’s decision is a reminder of why that’s so important.
 

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Leahy: Senators Will Address Oil and the Courts in Kagan Hearings

Patrick Leahy, the chairman of the Senate Judiciary Committee, says he’s going to make sure the subject of oil and the courts comes up in Solicitor General Elena Kagan’s Supreme Court confirmation hearings, which begin next week. The Hill reported Saturday:

The chairman, who will guide the confirmation hearing, pointed to controversial cases slashing a damages award in the 1989 Exxon-Valdez spill incident, an environmental disaster that's now been dwarfed by the Gulf spill.

"Turning back the award in the Exxon-Valdez, I wonder if the Supreme Court would do that today as they watch what's happening in the Gulf," Leahy said on C-SPAN's "Newsmakers" program, to air this weekend.

"It wasn't the liberals who said that Exxon shouldn't have to pay the amount that a jury gave the people of Alaska for their oil spill," the Vermont senator added later, critiquing conservative judges' decisions in some cases.

We, too, wonder if the current Supreme Court’s allegiance to corporate interests would lead it to give the same sort of gift to BP as it did to Exxon in 2008, if damage claims from BP’s devastating spill make their way to the high court. In fact, the pro-corporate reflexes that led to the Court to halve a jury’s award to the Exxon spill’s victims are exactly what we’d like Kagan to address in the upcoming hearings.

Take a look at the 20 questions we’ve drafted for Kagan . We’re glad to hear that a few of them may be asked.

 

 

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Chamber of Commerce Wages “Unprecedented” Campaign Against Lead Paint Lawyer

A few weeks ago, we wrote about the Chamber of Commerce’s campaign to prevent the confirmation of attorney John McConnell to be a Rhode Island district court judge, because of his work as a personal injury lawyer to hold corporations accountable for damage caused by their products.

Well, they haven’t succeeded yet, but it looks like they’ve certainly made their presence known. The Senate Judiciary Committee today approved McConnell’s nomination almost entirely along party lines—all but one of the seven Republicans on the committee voted against it.

Today’s Providence Journal reports that the Chamber sent the Judiciary Committee’s members a letter yesterday that made it very clear where they stood:


The Chamber’s letter escalates what was already an extraordinary campaign against the seating of a nominee to the federal trial bench. It is not common for nominations to these courts — dozens of which can be routinely cleared in a given year — to generate controversy. The Chamber says it is unprecedented for it to mount the kind of organized opposition it has launched against this particular U.S. District Court nominee

The Chamber, which tends to support Republicans through its campaign spending arm, has lobbied actively for changes in the system that permits large numbers of plaintiffs to seek large damage awards from companies.

“The Chamber urges you to oppose this nomination,” Josten told the Judiciary Committee in Tuesday’s letter. “Should the committee report Mr. McConnell’s nomination to the full Senate, the Chamber would consider votes on, or in relation to, this nomination in our annual How They Voted Scorecard.”

The Chamber is the biggest lobbying spender on Capitol Hill and its annual scorecard is no joke for lawmakers running for reelection. We’ll be sure to keep following the organization’s crusade as McConnell’s nomination moves to the Senate floor.
 

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A New Brand of Umpire

In a compelling new piece at Slate, Doug Kendall of the Constitutional Accountability Center and Jim Ryan of the University of Virginia argue that when Elena Kagan faces the Senate Judiciary Committee she shouldn’t ignore or reject strict Constitutionalism—she should wrest its definition back from the Right wing:

…Kagan should take the opportunity provided by this week-long constitutional seminar to chronicle the arc of our constitutional progress and make it clear that she will faithfully adhere to the whole Constitution, including the amendments passed over the last 220 years. The amendments passed since the founding era have been glossed over a lot lately, at the Tea Parties, in the states, and even at the Supreme Court, where the conservative "originalists" seem to view what was originally drafted by the framing generation as better, and more legitimate law, than the changes made since. This view is absurd and should be forcefully rejected by Kagan. Perhaps she could follow Chief Justice Robert's umpire analogy, in which he famously likened judges to umpires calling balls and strikes. No one would claim that modern umpires have the power to enforce the "original" rules of baseball, even if those rules have been changed. The same is true of justices enforcing the Constitution.

As Rand Paul and the RNC have recently learned the hard way, most Americans accept that our Constitution, like our society, has changed over the past 200 years. Kendall and Ryan are right that progressives shouldn’t downplay the written document—they should brandish it.
 

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Party Line Vote on Goodwin Liu in Committee

In a vote that surprised absolutely no one, Republicans on the Senate Judiciary Committee voted unanimously against the confirmation of Goodwin Liu, President Obama’s nominee for a seat on the Ninth Circuit Court of appeals. Nevertheless, he passed out of committee by a vote of 12 to 7.

Since even Liu’s critics concede that he’s brilliant, the GOP decided to attack him as “outside the mainstream” and for lacking judicial experience.

By now it’s well established that the Senate GOP will attack anyone as outside the mainstream, so that attack merits little more than a hearty yawn.

But lacking judicial experience? That’s relatively new for Senate Republicans. They sure didn’t mention it when they were voting for 24 courts of appeals judges nominated by President George W. Bush without any judicial experience, or when they were praising former Chief Justice of the Supreme Court William Rehnquist who went to the high court without ever having been a judge. And maybe they didn’t notice that the American Bar Association declared Liu “well qualified,” its highest possible endorsement.

Then again, Senate Republicans have never been shy about applying a double standard when it comes to judicial nominations.
 

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Judiciary Committee Schedules Vote on Goodwin Liu

The Senate Judiciary Committee has scheduled a vote for this Thursday on the nomination of Goodwin Liu to the 9th Circuit Court of Appeals.

Richard Painter—who, as George W. Bush’s chief ethics lawyer helped to shepherd through the nominations of Justices John Roberts and Samuel Alito— brought an interesting perspective to the Liu nomination in this morning’s Los Angeles Times:

A noisy argument has persisted for weeks in the Senate, on blog sites and in newspaper columns over President Obama's nomination of Liu to the U.S. 9th Circuit Court of Appeals. This political spat over a single appellate judge makes no sense if one looks at Liu's academic writings and speeches, which reflect a moderate outlook. Indeed, much of this may have nothing to do with Liu but rather with politicians and interest groups jostling for position in the impending battle over the president's next nominee to the Supreme Court.

Painter is right that Liu’s nomination has served as a flashpoint for partisan squabbles and a testing ground for new conservative talking points. We hope that the Judiciary Committee will be able look past the political expedience of bickering over Liu, and recognize him as the qualified, fair nominee he is.

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Senator Sessions Plays the “Judicial Activism” Card

At a Senate Judiciary Committee hearing today, Senator Jeff Sessions said that that Goodwin Liu’s writings represent “liberal judicial activism.” And he doesn’t like it!

But what Sessions apparently does like is conservative judicial activism. Overturn more than a century of settled campaign finance law? Limit women’s ability to recover for being discriminated against on their jobs? Hand billions of dollars to Exxon? Rewrite the Voting Rights Act? That’s a-ok! “Liberal judicial activism,” (by which I assume he means opposing those decisions)? Bad.

Senator Sessions’s ability to keep a straight face while delivering such patently farcical attack is impressive. His stale talking points aren’t.
 

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Sessions revives the empty “judicial activism” argument

Justice Stevens only announced his resignation a few days ago, and already the far right is throwing around the familiar Republican talking point about a potential “activist” Supreme Court nominee:

Several days after Supreme Court Justice John Paul Stevens announced his decision to retire, Republican leaders are already making it clear they'll put up a fight if President Obama nominates a left-leaning judicial activist.

Sen. Jeff Sessions, R-Ala., said if the president wishes to avoid a filibuster, he should choose someone with "mainstream" judicial views as Steven's successor.

"If it's somebody like that, clearly outside of the mainstream, then I think every power should be utilized to protect the Constitution," Sessions, the top Republican on the Senate Judiciary Committee, told NBC's Meet the Press.

Sessions elaborated:

It's when an unelected lifetime-appointed judge, or five of them use their power, unaccountable power, to redefine the meaning of the Constitution to effectuate some policy agenda, some empathy, some ideology that they have, that's what threatens the average American.

The “judicial activism” argument, which we’re sure to be hearing repeatedly in the coming weeks, rings hollow in the wake of this conservative-dominated Court’s decision in Citizens United v. FEC. That decision, which overturned over a century of judicial precedent to hand corporations an outsized amount of influence in the electoral process, is exactly the kind of judicial act that, in Sessions’ words, “threatens the average American.”

And it’s worth noting the multiple studies that have shown that the more conservative justices on the Supreme Court are the ones most likely to vote to strike down laws passed by Congress and decisions by federal regulators.

It’s time for conservatives to either retire the “judicial activism” argument, or start applying it to their own nominees.
 

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Senator Cardin on a Constitutional Amendment

In a hearing today entitled "We the People? Corporate Spending in American Elections after Citizens United,” the Senate Judiciary Committee discussed the impact of the Citizens United v. FEC and possible steps to repair the damage.  In addition to touching on legislative fixes, the question of a Constitutional Amendment came up, posed by Senator Benjamin Cardin on Maryland. 

Don't forget to sign our petition, calling for a Constitutional Amendment to restore government by the people.

UPDATE: YouTube has been having some problems with embedded videos. If you have trouble playing it, try double clicking the video to open it in YouTube in a new window.

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A Committee Meeting Worth Sitting Through

Today, well over a year after she was originally nominated, the Senate Judiciary Committee once again approved the nomination of Dawn Johnsen to head the Office of Legal Counsel.

As with any Judiciary Committee meeting, there was the requisite huffing and puffing by Republican Senators who never met a nominee they didn't want to obstruct.  But anyone willing to sit through their tirades was treated to an energetic showing by Democrats who seem to have had enough of the delay and the baseless attacks.

A personal favorite is the remarks by Senator Sheldon Whitehouse, who showcased the bipartisan support that Johnsen has received and thoroughly demolished the ridiculous claims that the recent OPR report somehow vindicated the Bush Administration OLC.

 

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GOP Obstructionism Is No Surprise

The good news is that the Senate Judiciary Committee voted this morning to approve - again - Dawn Johnsen's nomination to head the Office of Legal Counsel. The bad news is that this was yet another party-line vote where the Republicans opposed an unquestionably qualified candidate solely because she was nominated by President Obama.

People For the American Way has carefully documented the unprecedented behavior of Congressional Republicans, as they have done everything in their power to stymie President Obama's nominations and administration-supported initiatives even if they have overwhelming support within their own caucus. Just this week, for instance, Republicans filibustered the nomination of Judge Barbara Keenan to the Fourth Circuit U.S. Court of Appeals, after every Republican on the Senate Judiciary Committee had voted in support of her nomination. When the filibuster was broken, she was confirmed 99-0. 99-0!

How do you explain a party whose position on more and more issues is determined simply on whether they can hurt President Obama, even when they agree with him?

If you consider today's GOP as a traditional political party in the mold of other political parties throughout American history, their behavior is surprising. But this is the party that impeached President Clinton, shut down the 2000 Florida recount, and launched vast voter disenfranchisement campaigns around the country.

So just what is today's GOP? Just six weeks after President Obama's inauguration, our affiliate People For the American Way Foundation foresaw the next step in the party's devolution in a powerful and prescient Right Wing Watch In Focus report: Dragged along by its most extreme base, today's Republican Party does not see itself as the minority party in a democracy. Instead, they increasingly see themselves as a resistance movement, a mindset appropriate for fighting a dictatorship, but not for working with a democracy's freely elected government.

No one who read that report has been at all surprised by the GOP efforts to sabotage the workings of the federal government. They made it clear over a year ago how they envision themselves in a nation that rejected them at the ballot box. Their behavior since has been consistent.

It's sad that the party of Abraham Lincoln has sunk so low.

And it's outrageous that qualified nominees are being blocked by the GOP's obstructionist tactics. Help put a stop to it here.

PFAW

Judiciary Committee Hearing on OPR Report

On Friday, the Senate Judiciary Committee held hearings on the recently-released report by the Justice Department’s Office of Professional Responsibility (OPR).  The Office had been tasked with assessing whether lawyers in the Bush Office of Legal Counsel had acted unethically in crafting legal memoranda justifying torture.

Although the OPR report concluded that John Yoo and Jay Bybee had demonstrated “professional misconduct,” their recommendation for sanctions was overruled by Associate Deputy Attorney General David Margolis, who acknowledged that it was a close question but concluded that the two had exercised “poor judgment.

As we pointed out, regardless of the final recommendation, the detailed reports absolutely affirm that embattled nominee Dawn Johnsen, who has been waiting for more than a year to be confirmed to head OLC under Attorney General Eric Holder, was correct in her criticisms of the “torture memos” issued by the Bush OLC. 

Rather than being pilloried for her legitimate criticisms of the Bush OLC’s failure to respect the rule of law, Johnsen should be celebrated for extraordinarily valuable process she led with 19 former OLC lawyers in fashioning principles to guide OLC’s work going forward.

Those principles, by the way, have garnered support across the political spectrum, including former Attorney General Alberto Gonzales, Timothy Elliott Flanigan (nominated by Bush to be Deputy Attorney General), and former OLC head Steven Bradbury.

At the hearings, Senator Leahy noted that Attorney General Holder has been hampered in fully reforming OLC as Johnsen’s confirmation continues to be obstructed by Republicans. She should be confirmed without further delay.

PFAW

Leahy Keeps Pushing Forward on Nominations

At a meeting of the Senate Judiciary Committee today, Dawn Johnsen was set to be sent for a second time to the full Senate—this time on the one year anniversary of her original nomination. True, Washington is almost totally shut down by snow at the moment, but Senator Patrick Leahy (of Vermont, a place used to a few snowstorms) forged ahead and convened the Committee, succeeding in moving four more judicial nominations to the full Senate.

Unfortunately, not everyone is as willing to deal with a little bad weather. Republicans insisted that Johnsen's nomination be held over yet again due to the storm. After all, they wouldn’t want to pass up one more opportunity to try to paint her as “controversial.”

Sure, Johnsen has already served with distinction as acting head of the OLC under President Clinton, received bipartisan support from her home state senators and garnered endorsements from legal experts across the ideological spectrum, but that’s not going to stop the GOP from taking all the pot shots they can.

PFAW

Returning Justice to Justice: Stop the Obstruction

Don't miss today's New York Times article on the steps Attorney General Eric Holder is taking to restore the Civil Rights Division's historic focus on high-impact enforcement against policies that have a discriminatory impact on minorities. Also underway are plans to beef up hiring of career attorneys and an administration-wide effort to enforce regulations that bar those who receive public funds from advancing policies that have a disparate impact on minorities.

Now all the Attorney General needs is for an end to the Republican obstruction that has prevented the confirmation of Tom Perez to head the Civil Rights Division, not to mention Dawn Johnsen to head the Office of Legal Counsel and Chris Schroeder to head the Office of Legal Policy. By the time the Senate returns from its August recess, these nominees will have waited nearly 8 months, more than three months, and nearly one and a half months, respectively, for a vote by the full Senate following approval of their nominations by the Senate Judiciary Committee.

It's time to stop the obstruction and to give the Attorney General the assistance he needs in returning justice to the Justice Department.

PFAW

An Interesting Op-Ed Analyzes Republican Outrage at Sotomayor’s “Wise Latina” Remark

The first day of Judge Sotomayor’s confirmation hearings was replete with opening statements from Republican Senators expressing their concerns about her 2001 “wise Latina” remark: “I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn't lived that life.”

Conservative commentators have latched onto the statement, but Eugene Robinson’s op-ed in the Washington Post today unpacks what their objections imply.


Republicans' outrage, both real and feigned, at Sotomayor's musings about how her identity as a "wise Latina" might affect her judicial decisions is based on a flawed assumption: that whiteness and maleness are not themselves facets of a distinct identity. Being white and male is seen instead as a neutral condition, the natural order of things. Any "identity" -- black, brown, female, gay, whatever -- has to be judged against this supposedly "objective" standard.


Thus it is irrelevant if Justice Samuel A. Alito Jr. talks about the impact of his background as the son of Italian immigrants on his rulings -- as he did at his confirmation hearings -- but unforgivable for Sotomayor to mention that her Puerto Rican family history might be relevant to her work.


It is highly likely that this “wise Latina” remark will be the focal point of questions Judge Sotomayor will face from some members of the Senate Judiciary Committee this week.

PFAW

First Day of Sotomayor Confirmation Hearings

Judge Sotomayor’s confirmation hearings began this morning before the Senate Judiciary Committee with the opening statements of Chairperson Leahy and Ranking Member Sessions, followed by each of the remaining members in order of seniority.

Most Senators lauded Judge Sotomayor’s experience on the bench and academic credentials, but Republicans took the opportunity to accuse Sotomayor of being unable to rule impartially.

But Sotomayor's opening statement refuted that, underscoring her “rigorous commitment to interpreting the Constitution according to its terms…and hewing faithfully to precedents established by the Supreme Court and by [her] Circuit Court.

Senator Hatch noted that while he will question Judge Sotomayor vigorously, “[T]he Senate owes some deference to the [P]resident's qualified nominees.” Senator Graham followed suit, stating that “President Obama won. And that ought to matter. It does to me.” He went so far as to add that “unless [Judge Sotomayor had] a complete meltdown,” she would be confirmed.

Tomorrow brings one-on-one questioning by Judiciary Committee members broadcast live, beginning at 10 a.m. Stay tuned for updates as the hearings progress.

PFAW

Witness List for Sotomayor Hearing Announced

Today, Senators Leahy and Sessions released the list of witnesses who will testify at the Senate Judiciary Committee’s hearings on Supreme Court nominee Sonia Sotomayor.

We’re happy to see that Arkansas Attorney General Dustin McDaniel will be among those testifying. He was a big hit at our “Four Years of Forty” panel on the Supreme Court that People For hosted at the DNC in Denver last year.

But the list has some disappointments as well, like Peter Kirsanow, who after 9/11 raised the possibility of internment camps for Arab Americans.

If there's a future terrorist attack in America "and they come from the same ethnic group that attacked the World Trade Center, you can forget about civil rights," commission member Peter Kirsanow said.

The reason, he said, is that "the public would be less concerned about any perceived erosion of civil liberties than they are about protecting their own lives."

Not exactly the kind of person who should be front and center discussing an institution that should be devoted to protecting the rights and liberties of ordinary Americans .
 

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African American Ministers In Action Participate in Senate Judiciary Committee Hearing on Hate Crimes

AAMIA Members Revs. Frank Dunn and Joseph Smith attended yesterday’s Senate Judiciary Committee hearing on The Matthew Shepard Hate Crimes Prevention Act of 2009 (S.909), where Committee Chair Sen. Patrick Leahy (D-VT) acknowledged the work of AAMIA toward passage of this critical legislation. Witnesses included Attorney General Eric Holder, Jr., Author Janet Langhart Cohen, University of Dubuque Theological Seminary Professor Dr. Mark Achtemeier, US Commission on Civil Rights Commissioner Gail Heriot, The Heritage Foundation’s Brian W. Walsh, and the Anti-Defamation League Washington Counsel Michael Lieberman. You can view the webcast of the hearing here.

AAMIA and PFAW have submitted letters in support of the legislation, along with a fact sheet on the legislation, and myths and facts about hate crimes protections. AAMIA and PFAW have been out in front combating the lies from the right wing that this bill will silence pastors who speak out against homosexuality and same-sex marriage.

While they were at the hearing AAMIA staff and Rev. Joseph Smith caught up with author, playwright and producer Janet Langhart Cohen, a witness before the committee, and learned more about her Anne & Emmett Project, a play about a beyond-the-grave conversation between Anne Frank and Emmett Till. The play was scheduled to premiere at the US Holocaust Museum the week of the unfortunate tragedy at the museum where Officer Stephen Johns was killed in the line of duty by an avowed white supremacist.
 

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