Today I had the opportunity to moderate a discussion with Senator Sheldon Whitehouse on a conference call with PFAW members and activists.

As we’ve mentioned before, Senator Whitehouse has been one of the leading voices in the push to restore the integrity of the Department of Justice and confirm Dawn Johnsen to the Office of Legal Counsel.

Before the conversation, we solicited questions from our participants and got an enthusiastic response. Many of those questions focused on similar themes: What exactly happened at OLC? How can we fix it? And what can individuals do to help move the process forward?

Senator Whitehouse repeatedly emphasized the importance of OLC in providing honest legal advice, and he called on citizens in red and blue states alike to urge their senators to support Dawn Johnsen’s confirmation (and although he didn’t mention it, I’m sure he’d be happy to have you sign our petition as well.)

If you weren’t able to join our call, you can get a taste of what Senator Whitehouse shared with us from his appearance on Rachel Maddow’s show earlier this week.

UPDATED: You can listen to the conference call using the player below, or read the transcript here.
 

We just got word from the Senate Judiciary Committee that Republicans are going to get another shot at questioning Judge David Hamilton, President Obama’s first judicial nominee who is being put forward for a seat on the Court of Appeals for the Seventh Circuit.

Senator Leahy is indeed bending over backwards to accommodate Republicans, who, as we’ve reported, threatened to filibuster the President’s judicial nominees before a single name was put forward and who boycotted Hamilton’s first hearing, because they claimed they did not have enough time to prepare, prompting Senator Leahy to ask their questions for them.

As Senator Leahy said in making the announcement of this rare second hearing, “It has been four weeks since Judge Hamilton first appeared before the Committee, and I am disappointed that Committee Republicans have yet to ask a single question of this nominee.” Hopefully, this time the Republicans will show up and ask their own questions. Judge Hamilton is eminently qualified for this position – his nomination should not be further delayed.
 

Sunday's New York Times included an editorial calling for the impeachment of Jay Bybee, a U.S. Appeals Court Judge on the Ninth Circuit (nominated by Bush) who, while at the Department of Justice, authored memos providing the "legal" justification for the Bush administration's torture policies.

The Times is absolutely right: "These memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the Constitution. Congress should impeach him."

Here's some more from the excellent editorial regarding the investigation that should take place (my emphasis added):

That investigation should start with the lawyers who wrote these sickening memos, including John Yoo, who now teaches law in California; Steven Bradbury, who was job-hunting when we last heard; and Mr. Bybee, who holds the lifetime seat on the federal appeals court that Mr. Bush rewarded him with.

...

And if the administration will not conduct a thorough investigation of these issues, then Congress has a constitutional duty to hold the executive branch accountable. If that means putting Donald Rumsfeld and Alberto Gonzales on the stand, even Dick Cheney, we are sure Americans can handle it.

If the administration won't do it, Congress must hold the executive branch accountable. Sounds familiar.

PFAW's Campaign to Restore Justice

Checks and balances. What a novel concept...

People For the American Way Foundation board member Kathleen Turner posted a piece today on the Huffington Post making a forceful case for confirming Dawn Johnsen as the head of Office of Legal Counsel.

To restore integrity and respect for the rule of law to the Department, President Obama has nominated an inordinately qualified individual - Dawn Johnsen - who is now being attacked by Republicans and her right-wing allies for having the nerve to criticize Bush administration excesses. They're faulting her for criticizing OLC opinions that the Bush administration itself repudiated. In other words, she's being pilloried for having the very integrity and respect for the rule of law that the Bush OLC so clearly lacked.

If you want to speak out to support Dawn Johnsen’s confirmation, don’t forget to sign the petition.
 

What do you get when you cross a desperate Republican House campaign and a US senator who only months ago held the very seat the Republican candidate is seeking?

Another reason no-excuse absentee voting makes sense.

Two of the most damaging legacies of the Bush Administration - the gutting of FISA through warrantless wiretapping, and the assertion of the almost monarchical "unitary executive" theory of executive branch authority - returned to center stage late last week, as the government responded to the suit brought by the EFF in Jewel v. NSA.

Glenn Greenwald writes in a post yesterday the disappointing direction Obama's DOJ has taken in regards to the warrantless wiretapping lawsuit the Electronic Frontier Foundation brought against the Bush Administration in October. On Friday the DOJ offered up its first response to the court. Greenwald:

[T]he Obama DOJ demanded dismissal of the entire lawsuit based on (1) its Bush-mimicking claim that the "state secrets" privilege bars any lawsuits against the Bush administration for illegal spying, and (2) a brand new "sovereign immunity" claim of breathtaking scope -- never before advanced even by the Bush administration -- that the Patriot Act bars any lawsuits of any kind for illegal government surveillance unless there is "willful disclosure" of the illegally intercepted communications.

Greenwald's post involves a lot of legal heavy lifting, but it's very accessible and worth reading.

This development is scary, but sadly not the first time Obama's DOJ has taken cues from its predecessor. In February we noted with disappointment the continued use of the "state secrets" privilege in the extraordinary rendition case Mohamed et al. v. Jeppesen.

One of the much lauded compromises of the FISA amendments last year was the fact that while telecom corporations were immune from suit, government officials could still be brought to court for illegal wiretapping. So while the new FISA now allows for longer periods of warrantless wiretapping (7 days, up from 48 hours) and permits the destruction of wiretap records, the DOJ now aims to snatch away the single bone thrown to civil libertarians.

You can read the EFF's press release here.

According to the Daily Beast, the GOP is threatening to filibuster President Obama’s legal nominees if he moves to release the infamous “torture memos” that came out of the John Yoo-era Office of Legal Counsel:

A reliable Justice Department source advises me that Senate Republicans are planning to “go nuclear” over the nominations of Dawn Johnsen as chief of the Office of Legal Counsel in the Department of Justice and Yale Law School Dean Harold Koh as State Department legal counsel if the torture documents are made public. The source says these threats are the principal reason for the Obama administration’s abrupt pullback last week from a commitment to release some of the documents. A Republican Senate source confirms the strategy. It now appears that Republicans are seeking an Obama commitment to safeguard the Bush administration’s darkest secrets in exchange for letting these nominations go forward.

It was bad enough that George W. Bush spent the last eight years politicizing the Department of Justice and degrading the rule of law. Now, instead of working with the new administration to clean up the DOJ, Republican Senators are apparently doubling down and desperately attempting to cover up the Bush Administration’s misdeeds and their own complicity.

As several of the Democrats on the Senate Judiciary Committee said during the Committee’s vote on Dawn Johnsen’s nomination: bring it on. If the GOP wants a public debate about what’s been going in on the Justice Department, that’s the kind of debate the American people will understand.

In the mean time, now would be a good time to remind every member of the U.S. Senate, Democrat and Republican alike, that it’s time to confirm Dawn Johnsen and clean up the DOJ.

While national Religious Right leaders have reacted with predictably apocalyptic venom to the unanimous Iowa Supreme Court ruling upholding marriage equality, there's more good news from the state's political leaders. According to the national Stonewall Democrats, the Iowa Democratic Party has long been on record supporting marriage equality, with a position clearly and unequivocally written in the state party platform.

And while state Religious Right leaders are demanding that the legislature begin the process of amending the state constitution, legislative leaders instead praised the Supreme Court's decision. Iowa Senate Majority Leader Mike Gronstal and Iowa House Speaker Pat Murphy issued a strong statement. Here's an excerpt:

Thanks to today's decision, Iowa continues to be a leader in guaranteeing all of our citizens' equal rights.

The court has ruled today that when two Iowans promise to share their lives together, state law will respect that commitment, regardless of whether the couple is gay or straight.

When all is said and done, we believe the only lasting question about today's events will be why it took us so long. It is a tough question to answer because treating everyone fairly is really a matter of Iowa common sense and Iowa common decency.

Marriage equality is a done deal in the state for now. Even if legislative leaders were eager to amend the state constitution, it's a long and complicated process that requires action by both houses in two consecutive general assemblies to put an amendment before the voters. According to the Des Moines Register, Iowa Family Policy Center President Chuck Hurley "acknowledged that until a constitutional amendment could be placed on the ballot, there's nothing gay-marriage opponents can do to stop gay couples from marrying in Iowa. The soonest such a vote could take place would be 2012."

Congratulations and thanks, Iowa. Next up: Vermont, where marriage equality has passed both houses with large majorities in spite of a veto threat from the governor. The vote to override is expected to be a close one.

I’m just back from the Senate Judiciary Committee hearing on the nomination of Judge David Hamilton to the Court of Appeals for the Seventh Circuit, which the Republicans on the committee boycotted because they claimed they had not been given sufficient time to prepare for the hearing. In an ironic twist, the hearing was held in a small room off of the Senate floor—the same room that Senator Leahy, the Chair of the Committee, used to continue holding hearings on President Bush’s judicial nominations in the immediate aftermath of September 11th.

As Senator Leahy noted today, the Democrats on the Committee have a better record of pushing through Republican judicial nominees than the Republicans had when they were in charge. Yet today, the Republicans once again were all about trying to delay the process, and we’re now even seeing complaints that the hearing was moved to the Capitol, a move which actually helped accommodate Senators who needed to be on the floor to vote on budget amendments.

In the absence of the Republicans, Senator Leahy ended up asking Judge Hamilton about cases that Senator Specter had identified as potentially problematic – in other words he asked the Republicans questions for them!

David Hamilton is eminently qualified to sit on the Seventh Circuit. We hope the Committee will move his nomination forward when the Senate returns from its upcoming two-week recess.

You should also care about the Supreme Court.

In a setback for environmentalists, the Supreme Court ruled on Wednesday that federal regulators may consider costs when deciding whether to order the operators of power plants to install protections for fish.

By 6 to 3, the court overturned a ruling by the United States Court of Appeals for the Second Circuit, in Manhattan, which had ruled that the Clean Water Act barred the Environmental Protection Agency from engaging in the kind of cost-benefit analysis that it had proposed.

The recent narrow-but-good decision in Massachusetts v. EPA shouldn’t fool anyone into thinking that the Supreme Court is a particularly green institution at the moment, and today’s 6-3 decision (Justice Breyer wrote a concurrence) should be a reminder that the “liberal” wing of the Court is far from uniform. There’s a big difference between a good Justice and a great one, especially when it comes to environmental issues.