THE PROGRESS REPORT
June 12, 2009
by Faiz Shakir, Amanda Terkel, Matt Corley, Benjamin Armbruster, Ali Frick, Ryan Powers, and Ian Millhise
Senate Judiciary Committee Chairman Patrick Leahy (D-VT) announced this week that Judge Sonia Sotomayor's confirmation hearings will begin on July 13, timing that closely mirrors Chief Justice John Roberts' Senate confirmation schedule. Therefore, Sotomayor's hearings will start 48 days after her nomination was announced; Roberts received a hearing after 51 days. The Chief Justice was confirmed 72 days after his nomination, even though senators were distracted from reviewing his record when Hurricane Katrina devastated the Gulf Coast. The 72nd day after Sotomayor's nomination will be Aug. 6, the day before Congress' summer recess is supposed to begin. Yet despite Leahy's attempt to achieve parity between President Obama's and President Bush's nominees, Senate conservatives immediately complained that Sotomayor is receiving preferential treatment.
Initially, conservative complaints that Sotomayor cannot be confirmed in a timely manner were heavy on overblown rhetoric and light on substance. Senate Minority Leader Mitch McConnell (R-KY) claimed that obstructing Sotomayor is necessary to prevent a "situation like they did with Guantanamo." A GOP press release suggested that senators should review each of Sotomayor's 3,000 decisions at the pace of six decisions per day -- a rate that would not allow Sotomayor's hearings to begin until 2011. Of course, during Justice Alito's confirmation, Judiciary Committee ranking member Jeff Sessions (R-AL) said that "we don't need to read everything." By mid-week, conservatives were claiming that Sotomayor herself is at fault for creating the need for a delay because she was not forthcoming in her disclosures to the Senate. In a letter that closely resembles a press release by the right-wing Judicial Confirmation Network, all of the Senate Judiciary Committee's seven Republicans claimed that Sotomayor hid key documents from the Senate and made conflicting statements that must be resolved before they could consider her nomination. The letter's claims, however, dwell upon trivial distinctions, apply newly invented rules to Sotomayor, or otherwise demand that she complete irrelevant or even impossible tasks before her nomination may be considered. At one point, for example, the letter asks Sotomayor to "clarify" why she has at times referred to herself as a former "vice president" of the Puerto Rican Legal Defense & Education Fund, and at other times referred to herself as the former "First Vice President" of the same organization. At another point, the letter criticizes Sotomayor for failing to turn over copies of the law review articles she edited as a law student, even though neither of Bush's nominees were required to disclose the very same information. Three paragraphs of the letter are devoted to demands that Sotomayor uncover decades-old files from her career as a litigator, even though many of these files may no longer exist. Moreover, the senators' new demands come despite the fact that Sotomayor already provided a stunningly detailed record of her career to the Senate. Her 173-page questionnaire and 130 page appendix far exceed the level of disclosure that was required from either of Bush's nominees. Roberts's questionnaire was 83 pages long; Alito's a mere 64.
A FAMILIAR DANCE:
The right's disingenuous claim that Sotomayor's nomination must be obstructed are far from novel. Indeed, Sotomayor is only the most recent of Obama's well-qualified nominees to receive the same shoddy treatment. Consider Dawn Johnsen, an Indiana law professor who has been nominated to head the Department of Justice's Office of Legal Counsel (OLC), and who may be the single most qualified attorney in the world to lead that office. A former acting head of the OLC during the Clinton Administration, Johnsen was among the most outspoken opponents of Bush's pro-torture policies. Nevertheless, Senate conservatives have successfully prevented her nomination from receiving a floor vote, often citing her pro-choice views for justification even though OLC's role has little or nothing to do with abortion. Obama nominee Harold Koh, former dean of the Yale Law School and a leading scholar of international law, has received similar treatment since he was nominated to be the State Department's chief legal adviser. Although an op-ed in the New York Post claimed that Koh wants to apply fundamentalist Islamic law in U.S. courts and anti-feminist icon Phyllis Schlafly called him "too dangerous for America," Koh has received ringing endorsements from mainstream progressives and conservatives alike, including Yale Law School's conservative Federalist Society. Nevertheless, Koh's nomination has yet to receive a vote. Perhaps the most bizarre example of conservative obstructionism, however, is the Senate's failure to confirm Judge David Hamilton, President Obama's nominee to the United States Court of Appeals for the Seventh Circuit. A distinguished federal trial judge who has been endorsed by conservatives ranging from Sen. Dick Lugar (R-IN) to the president of the Indiana chapter of the Federalist Society, Hamilton's nomination is nevertheless endangered by a possible filibuster. Sen. James Inhofe (R-OK) announced that he would filibuster Hamilton because Hamilton allegedly banned Christian prayers in the Indiana state legislature, but endorsed allowing legislative sessions to be opened with an Islamic blessing. In reality, Hamilton issued two opinions, one applying a Supreme Court decision that bans officially-sanctioned prayers which prefer one religious sect over another, the other holding that permissible non-sectarian prayers may be offered in a foreign language such as Arabic.
THE RIGHT'S DOUBLE STANDARD:
Not so long ago, Inhofe sang a very different tune. In 2003, when Bush was still president, Inhofe proclaimed that filibustering a nominee is not only "wrong" but even "contrary to our oath to support and defend the Constitution." McConnell claimed -- falsely -- that judicial filibusters were "unprecedented," a claim echoed by Sessions. Indeed, Senate Republicans were so convinced that Bush's nominees were above scrutiny, they even invented something called the "Ginsburg Rule," which provides that Bush's judges could ignore any question they didn't want to answer during their confirmation hearing. Moreover, conservatives' strident claims were matched by strong-arm tactics such as the "nuclear option," a maneuver that would have eliminated judicial filibusters altogether. Democrats relented, even allowing a judge who believes that basic labor protections such as the minimum wage, maximum hour, and child labor laws are unconstitutional to be confirmed to the nation's second-highest court. Now that they are in the minority, conservatives suddenly think that their own rules shouldn't apply. The only remaining question is whether the majority will allow a dwindling group of right-wing senators to impose such a double standard.
UNDER THE RADAR
NATIONAL SECURITY -- REPUBLICANS ATTACK READING MIRANDA RIGHTS TO OVERSEAS DETAINEES:
Based on allegations by Rep. Mike Rogers (R-MI), Republicans have been suggesting that the Obama administration was putting America at risk by having the FBI read Miranda rights to detainees in Iraq and Afghanistan. Rogers claimed that this policy would lead to U.S. military forces reading Miranda rights to terrorists captured on the battlefield. Rep. Pete Hoekstra (R-MI) criticized the policy, saying, "They're going back to a law enforcement mentality. ... This dramatically changes the way that our frontline forces work." The policy has also sparked outrage in right-wing circles, where they say that this is another example of the Obama administration coddling terrorists. The reading of Miranda rights, however, happens only on limited occasions and does not occur on the battlefield. It is also part of standard Department of Justice protocol continued from the Bush administration, which also read Miranda rights to select detainees. "In order to preserve the quality of evidence obtained, there has been no overall policy change with respect to detainees," said DOJ spokesman Matt Miller. Gen. David Petraeus explained the effect of the policy on the battlefield at a conference hosted by the Center for a New American Security: "These are cases where they are looking at potential criminal charges. We're comfortable with this."