Saturday, June 11, 2005

"The effect of these investigations by the press, the courts, and congressional committees was profound"

The recent revelation that W. Mark Felt, former #2 man at the FBI, was the "Deep Throat" whose information helped Washington Post reporters Woodward and Bernstein on the stories that exposed Nixon for what he always claimed not to be--a crook--might seem a bit far afield from the issue of what kind of ethics members of the federal judiciary rule by. However, the fantastic and historically expansive piece in Newsweek ("A Long Shadow" by Evan Thomas, June 13 edition) on the impact then and the meaning now of Felt's disclosures, puts it quite starkly: "Watergate did not just spell the end of the Nixon presidency. It started a chain reaction of investigations and prosecutions that eventually exposed all manner of secret wrongdoing by the FBI and the CIA: black-bag jobs, illegal mail opening and CIA plots to assassinate foreign leaders. The effect of these investigations by the press, the courts, and congressional committees was profound."

While the article makes clear that in some cases it seems the government intelligence and military branches have become too cautious as a result, it raises the important issue of the treatment of executive privilege, which presidents can and have used as a reason not to share information or evidence with inquiring parties, especially Congress and the judiciary. In the article, Thomas does not shrink from drawing a line between Nixon's tarnishing of executive privilege, which he tried to use to conceal his careerist wrongdoing, and the current administration's determination to assert it: "There is no doubt that Bush wishes to expand executive power, to restore it to pre-Watergate days. Vice President Cheney has been particularly outspoken about guarding the prerogatives of the executive. At press conferences (most recently this week), Bush has shown a kind of casual disdain for Congress and the press, his two main foes in the Washington power game."

One of the questions we raise about the nominees to the federal judiciary concerns their professional ethics. Two nominees who were just confirmed, Pryor and McKeague, have long-standing ties to the Republican party and in particular to its leaders. Would they have the guts to challenge a claim of executive privilege where it is merited? For that has been the basis of, for example, Cheney's refusal to disclose the notes of the meetings he had with former Enron executives about energy policy. Would they support Congress should that body feel it necessary to perform their Constitutional duty to check the Executive Branch's exercise of power through an investigation? Another nominee, Henry Saad, has a record of holding the right of privilege (e.g. between doctors and patients, lawyers and clients) to such a strict standard that even in cases where both the plaintiff and the defendant have already viewed the documents legally, he ruled them inadmissable to prove, for example in a labor-laws dispute, that a nurse was made to perform tasks she should not have been.

Another relevant concern is the fate of various provisions of the P.A.T.R.I.O.T. Act (let's not forget, it's an acronym, not to be confused with actual patriotism). It occurred to me that perhaps the administration is fighting so vigorously because the post-Watergate spotlight made the kind of activities formerly undertaken by the FBI and CIA more difficult--because they were illegal. Their solution: legalize it. Here as well, we will need a judiciary that is independent from the political power brokers, whoever they may be, to protect our Constitutional rights. We all want to be as safe as possible, but at the price of losing our identity as a nation that protects and cherishes the rights enshrined in our founding document? Surely not.

Thursday, June 09, 2005

Two More

Two More of bush's judicial nominees made it through, bringing the total to five since the deal to stop the "nuclear" option went through. Richard Griffin and David McKeague were both apointed 6th Circuit Court of Appeals, confirmed with 95-0 and 96-0 votes respectively. Thankfully, the filibuster on William Myers, a nominee with no experience as a judge, is expected to hold.

It is yet to be seen, who the president will try to push through when a seat opens up on the supreme court, but hopefully his choices will be much more wise and a little less partisan.

William H. Pryor confirmed

In an interesting vote today, Judge William H. Pryor, allowed to get past a filibuster by virtue of the compromise, was confirmed. The vote was 53-45.

The New York Times explains the vote breakdown:
"Three Republicans voted against confirmation - Senator Susan Collins and Olympia Snowe, both of Maine, and Lincoln Chaffee of Rhode Island. Two Democrats voted in favor - Senators Ben Nelson of Nebraska and Ken Salazar of Colorado. Two senators did not vote - James Jeffords, Independent of Vermont, and Lisa Murkowski, Republican of Alaska."
Had the Democratic caucus voted together, with the power of Jeffords and Murkowski, Judge Pryor still would've been confirmed by a 51-49 vote. It would've have been the closest vote yet for a Bush judicial nominee.

Wednesday, June 08, 2005

Senate confirmation

I have just read the sad news. Judge Janice rogers Brown was confirmed with a 56-43 vote.

Cloture vote on William Pryor

The Senate is currently voting on cloture on the nomination of William Pryor. This cloture vote was part of the Memorandum of Understanding signed by the so-called "Gang of 14."

One reason for Senators to vote against cloture, and (should it pass) the nomination overall: His confirmation to a lifetime appointment on the federal bench would be a huge blow for women’s rights. Pryor considers Roe v. Wade to be "the worst abomination of constitutional law in our nation’s history."

It is also important to remember that after the compromise was reached in May, Senator Lindsey Graham (R-SC) stated that he believed that there was a decent number of Republican senators who were poised to vote against one of the nominees that was given a cloture vote via the compromise. Many have speculated that this is the nominee he was referring to.

Janice Rogers Brown Confirmed

The final vote was 56-43. Senator Ben Nelson (D-NE) was the lone crossover voter.

Voting on Janice Rogers Brown begins

The vote has begun and can be viewed on C-SPAN 2. So far, the votes have been strictly party line.

For more information on why Judge Brown is out of the mainstream and into the extreme, please refer to this post at Think Progress.

Why Not Prado?

The folks at Draft Prado think it is time for a uniter, not a divider. Prado was nominated to the federal bench by Reagan and bumped up to a Circuit Court Judge by Bush, both times with the advice and consent of both parties in the Senate.

Can we trust the nomiinations?

There is plenty of reason to mistrust many of the controversial judicial nominees now awaiting Senate review of their fitness for the appellate circuit courts. Another question to ask is, can we trust the reasons for their initial nomination? Can we trust the process by which the President selected these nominees? The proponents of the nominee argue that the simple fact that he selected them means that they are qualified. Is this true? We can answer this question by looking first at the nominees and then at the general decision-making inclinations of the administration.

The work on the nominees has been done on the educational website associated with this blog. Check it out for yourself. The general picture that emerges is clear: these nominees tend to:

  • Be inconsistent in their rulings
  • Be ready to put personal agendas ahead of legal precedent and democratically-produced law
  • Have certain conflicts of interest that will significantly bias their legal decisions

Why did the administration nominate such obviously dubious candidates to play such an important role in our democracy? I support many things President Bush has said and I believe that he is a good man at the bottom; I think I would like him, were we to meet. But there can be no question that his administration has a record of putting personal ideology ahead of important facts about the public good. This may explain why he sees no problem with judges who do the same. Today’s morning paper illustrates this tendency in the administration and the Congressional leadership in three separate articles about otherwise unrelated stories.

1. We learn today, in a big story, that a White House official has been repeatedly editing government climate reports to hide the causal connection between greenhouse-gas emissions and global warming. This is lying, plain and simple. It is simply a fact that the vast majority of qualified people – scientists and their policy-making partners – agree that global warming is happening. They agree that it is happening as a direct result of these emissions, and they agree that the consequences will be dire if we do not act now. This is what makes the falsification of these reports so dangerous: global warming is a global crisis that will kill a lot of people, including Americans, and ruin whole countries (by the way, don’t terrorists tend to come from ruined countries, like Afghanistan?).

What’s worse is that the man the administration asked to edit scientific reports is not only unqualified; he, in fact, has a vested interest in denying the scientific data. He is a lawyer, with no scientific training. His qualification for this job, rather, was his previous job was as “a lobbyist, at the American Petroleum Institute, the largest trade group representing the interests of the oil industry.” This puts special interest ahead of the general good of our country; it puts a personal agenda ahead of the facts we need to make crucial decisions.

(A related fact is that William Myers III, one of the controversial nominees, has been nominated for the 9th Circuit Court. What is his qualification for sitting on the court, whose jurisdiction is over an huge part of the country, including Alaska, that has an immense amount of public, federally-protected land? Well, he’s never actually been a judge. Rather his professional background has been as a grazing and mining industry lobbyist.)

2. The second story concerns the “recently disclosed British government memorandum that said in July 2002 that American intelligence was being ‘fixed’ around the policy of removing Saddam Hussein in Iraq.” Everyone already knows what happened in the Administration’s campaign to convince Americans to go to war in Iraq – the deceit, the mistakes, the failure to prepare. This article is just a reminder of the fact that the administration forced intelligence analysts to tell the story that the administration wanted to hear about Iraq. These analysts were coerced into saying that Hussein had weapons of mass destruction, when he did not. They were coerced into saying that American soldiers would fight a 10-day war and be welcomed as liberators; that was more than two years and 1,600 American deaths ago. Again, the administration ignored and altered the facts in order to push its personal agenda onto the American people. Again, with disastrous consequences.

3. The third story is not about the President, but rather the Republican leaders in the House of Representatives. Allegations of Tom DeLay’s ethics violations are also well know. But what’s new in today’s paper is that the person in charge of investigating DeLay’s behavior – the Chairman of the House ethics committee – has a close personal and financial relationship with exactly the same firm that DeLay is accused of conspiring with. How can Doc Watson (WA-R), the Chairman, be expected to treat this case objectively when his own personal interests are wrapped up in the center of it? Two Republican members of the ethics committee have already recused themselves because they contributed to DeLay’s legal defense fund. But the man who controls the entire process will not recuse himself, despite the fact that he is beholden to DeLay’s conspirators? Again, personal agendas ahead of truth and the well-being of the country.

Remember, this is just a random collection of news for the morning of June 8. Yet so pervasive is the theme of personal agendas, conflicts of interest, and altering of facts that it shines in your eyes like a spotlight.

This isn’t just a question of ignoring or altering substantive facts, though that would be bad enough. The even more important question is this: what are the consequences of this cavalier attitude to the truth and this willingness to change facts to serve narrow interests? The answer: They do serious damage our decision-making process, and people suffer as a result.

Scientists warn that “the administration's procedures for vetting reports on climate could result in excessive political interference with science.” They speak of a chilling effect on scientific discovery and exchange. This in a world where science holds the key to ending so much human suffering, like disease, malnutrition, and the effects of climate change; where the government must be able to understand the challenges and respond to them. The chilling effect is also well known from the lead-up to the Iraq war. Intelligence was faulty and people died, because the administration’s desire to go to war made objective appraisal of the evidence impossible, or at least something you would get fired for trying to do. What resulted from the way this insistence deformed strategic decision-making? Well, General MacArthur had a plan for the occupation of Germany two or three years before WWII ended. The Bush administration hadn’t begun talking about what to do after the fighting in Iraq two months before the invasion. This is why the fighting is still going on.

The controversial nominees came from this same decision-making process. Unfortunately, they demonstrate similar corruption in the process. They indicate the administration’s desire to place narrow political agendas over the rule of law for all Americans. They confirm his willingness to elevate members of special interest groups precisely to decide contests between that same interest group and another party. This is a shame.

News: Janice Rogers Brown

Yesterday, the Senate voted for cloture on the filibuster concerning the nomination vote on Janice Rogers Brown.

This vote was pre-ordained because of the compromise laid out in the Senate's Memorandum of Understanding. The Memorandum endorsed the senate institution of the filibuster and, in return for seven Republican Senators' promise not to vote for the (illegal) nuclear option, agreed to let certain nominees come to a floor vote. Brown is one of those nominees. The vote to send her to the floor is not, therefore, an endorsement of her qualifications to serve a lifetime appointment on the second highest court in America. Rather, and somewhat ironically in the present context, it is an endorsement of the filibuster, the procedural tool that would have challenged her appointment. Because the compromise affirmed the filibuster as an important tool of building consensus and ensuring that moderate, centrist voices prevail in the Senate, the vote is actually an anti-endorsement of Brown. Why? Because Brown is unacceptable to that moderate, centrist view. The floor vote was mandated by the compromise; the compromise recognized the importance of political moderation; without the compromise, Brown could not have won the support of Senate moderates.

Brown is an extremely troubling nominee for several reasons, but primarily because her legal rulings tend not to respect the law, but rather reflect her own (often inconsistent) personal agenda; this agenda, moreover, lies far outside of mainstream American political, legal, and popular opinion. For these reasons, she was unable to garner recommendation from a mere 60 of 100 Senators. Do we want such a figure making crucial, far-reaching decisions about our laws and lives for the next 40 years? I would suggest that we do not.

The New York times provides a short summary of the vote for cloture.

Welcome and Salutations

This is a group blog dedicated to examining the current controversial nominations to the federal judiciary. It is associated with the educational website, Students for the Judiciary. This is the mission statement:

non-partisan student-led campaign to provide objective information on judges under consideration for lifetime appointments to the federal judiciary. We are committed to the ideal of an independent judiciary and believe that judicial nominees should be able to divorce their personal political opinions from their ability to interpret the Constitution. As such, qualified nominees should be able to secure a broad base of political support.
. This group of students at American colleges and universities grew out of the nationwide student movement to preserve the filibuster in the face of the nuclear option. That effort ended up featuring more than 50 filibusters for the filibuster in 36 states. It also signaled that young adults in the United States are much more ready to involve themselves directly in important political questions than common opinion holds. Nor, as the present initiative suggests, are the students satisfied with what they have already accomplished, because what they have already accomplished is not sufficient. The controversial nominees are positioned to receive lifetime appointments to the second highest court in the United States. It is important to ask serious questions about their qualifications.

We hope you learn significant and pertinent facts you didn’t before know about the judicial nominees. We hope you get involved in this issue yourself, calling your Senator or informing your local paper of your views on the nominees. We hope you enjoy this blog.