Thursday, June 29, 2006

Senate Live - June 29, 2006

The Senate is scheduled to open at 9:30. Morning business is scheduled for the first 2 hours. After that, debate and vote on S.3569 - A bill to implement the United States-Oman Free Trade Agreement, with a vote expected sometime in the afternoon.

I expect the Senate to wind down its business this week with its customary whimper.


The President made nominations to fill four Circuit Court vacancies, raising the total number of open nominations to Circuit Courts to thirteen, three of which remain from the 1st session (2005) of the 109th Congress.

  • Kent A. Jordan to the 3rd Circuit
  • Raymond M. Kethledge to the 6th Circuit
  • Debra Ann Livingston to the 2nd Circuit
  • Stephen Joseph Murphy, III to the 6th Circuit

The Circuit Court Nominations Summary will be updated to reflect these nominations.

And in the same vein, the Senate Judiciary Committee conducted hearings yesterday on the nominations of Bobby E. Shepherd and Kimberly Ann Moore, and is scheduled to have an executive meeting starting at 9:30 today where it may report out the nominations of Gorsuch and/or Holmes.

But get a load of this ...

Statement of Senator Patrick Leahy
Hearing on Judicial Nominations
June 28, 2006

... I have praised the Republican Senate leadership this past month for wisely passing over the controversial nominations of William Gerry Myers III, Terrence W. Boyle and Norman Randy Smith to turn to well-qualified nominees that could be easily confirmed. The Republican leadership was right to have avoided such controversial nominations that were only reported on a party-line vote.

However, I am concerned that again the Republican leadership is heeding the clarion call of the far right-wing to pick a fight over the nomination of Judge Boyle to the U.S. Court of Appeals for the Fourth Circuit.

Senator Leahy goes on to call for the Boyle nomination to be withdrawn, or if not withdrawn, to conduct a second set of hearings. In Leahy's letter, one can see the reason that the Senate GOP leadership is calling for more nominees - it prefers to reject nominees through inaction, and is not prepared to take up the contentions nominations.

T.R. Goldman of the Legal Times has this piece that well summarizes the approach being taken by Senators Specter, Frist and certain members of the Gang of 14 - and includes a fascinating history that shows the depth of Senatorial pique.


Awaiting SCOTUS to hand down its opinion and order in the Hamdan case as well, scheduled timing for that release is 10:00 AM, with news reports to no doubt follow very quickly thereafter.


Some context for Senator Murray's speech of Tuesday, June 27, relating to EU taxpayer subsidies for Airbus ...

Boeing sees Airbus aid ploy to build rival jet
By Jeffrey Sparshott - THE WASHINGTON TIMES
June 29, 2006

... Industry analysts expect Airbus to announce a new aircraft design, possibly called the A370, at the Farnborough International Airshow, which runs from July 17 to 23 in England. ... A request for government aid likely would follow, Mr. Aboulafia said.

The Bush administration in October 2004 filed its WTO case, saying European governments had subsidized Airbus with $15 billion in loans for new projects since 1992.

The European Union responded with its own WTO suit. The 25-nation bloc said Boeing had received $23 billion in subsidies since 1992, including local tax breaks, defense contracts, NASA research and other support.


Here is an example of typical government bureaucracy and scapegoating.

VA Worker Had OK for Data Later Stolen
By HOPE YEN - Associated Press Writer
June 29, 2006

VA Secretary Jim Nicholson and other top department officials were to testify Thursday before a House committee investigating the government's largest computer security breach.

According to internal documents obtained by The Associated Press, the VA data analyst faulted for losing personal data for up to 26.5 million veterans had the department's approval to access millions of Social Security numbers on a laptop from home. ...

VA officials have said the firing was justified because the analyst violated department procedure by taking the data home. ...

The VA has spent more than $16 million to set up a call center and to notify veterans by letter. It is spending an additional $200,000 a day to maintain the center.


And a couple Op/Ed columns that are worth reading in their entirety. Watch for the Deep Ocean Energy Resources Act to appear before the Senate at some point in time, maybe a couple years from now.

Spending virus
By Steve Chapman
Published June 25, 2006

... The average Republican member of the House voted to boost spending by $168 billion, while Democrats averaged $178 billion. In the Senate, Republicans were even less frugal than in the House, voting for $183 billion in new spending on average. But Senate Democrats bid even higher, averaging $217 billion. These figures don't even count spending on entitlements and other "mandatory" programs, which are also running out of control.


Budding oil price relief?
By Lawrence Kudlow
Published June 29, 2006

... There's even good news from Washington on the energy front. The House Resources Committee, chaired by California Republican Richard Pombo, has just delivered the Deep Ocean Energy Resources Act, which will give coastal states the authority to drill 100 miles or more offshore. This will allow for exploration and production in the deep seas and on the Outer Continental Shelf (OCS), where kajillions in oil and gas reserves are waiting to be siphoned. It also will provide the coastal states with significant oil and gas royalties. Democratic House Minority Leader Nancy Pelosi opposes this, but the bill has strong bipartisan support.

UPDATE @ 9:40

As usual, a number of interesting conversations at, including this comment by "Gregg":

Insider said last year at this time that there would be two retirements with Rehnquist and O'Connor in the summer and that a third retirement [interpreted to be Souter] may be made later in the term [January, 2006] or at the end of the term. Souter may be trumped again by Stevens. I think Stevens will announce his retirement within days followed immediately by Souter.

One can always hope.


With regard to the Hamdan v. Rumsfeld case, ScotusBlog has a preview of "what to look for". Be sure to click through to The Importance of Geneva Common Article 3 and Battle Royale at the Pentagon at the "Balkanization" site. Hamdan is a very important decision that aims to flesh out the grey area between civil law and the law of war.

From The Importance of Geneva Common Article 3 ...

The Hamdan court defers to the President's judgment, reasoning that the conflict with Al Qaeda is not limited to Afghanistan, but extends to "other regions, including this country," as well. The court, in other words, construes the phrase "not of an international character" to refer to a geographical condition. This is the only holding of the Hamdan court that prompted a dissent. Judge Williams concludes, by contrast, that the word "international" means "between nations," and that because Al Qaeda is not a nation, Common Article 3 applies to our conflict with that organization. ...

First, the President concluded and decreed that Common Article 3 [of the Geneva Conventions] does not apply by its terms to our conflicts with al Qaeda and the Taliban. It is this conclusion that the divided court of appeals affirmed on Friday. ...

What is very new -- and very ominous -- is the President's determination that the United States will not uniformly apply the standards of Common Article 3 as a matter of policy, thereby deviating from more than a half-century of consistent U.S. practice.

A considerable amount of background for the informed speculation of outcome (the administration will be defending some "habeas corpus" aspect of Gitmo cases in Article III Courts) can be found in this piece of March 28 - also from ScotusBlog - indicating that the administration met with what appeared to be strong disagreement during oral argument.

UPDATE @ 9:50

It appears the Senate is moving toward a vehicle to move the immigration bill to conference, but it is no surprise that Senator Brownback, a proponent of relatively open borders and an advocate of comprehensive immigration reform, agrees with Senator Reid on this.

I do too - better to move something into conference so negotiations can continue.

Senator Brownback goes on to deliver about 20 minutes of speech against funding for embryonic stem cell research, but in favor of umbilical blood cell research, and adult stem cell research.

UPDATE @ 10:20

From yesterday ...

Mr. FRIST. Mr. President, I understand there is a bill at the desk. I ask for its first reading. ...

A bill (S. 3590) to amend title XIX of the Social Security Act to delay the effective date of the amendments made by the Deficit Reduction Act of 2005 requiring documentation evidencing citizenship or nationality as a condition for receipt of medical assistance under the Medicaid program.

Figures. A bill to delay a date of implementation. This will be passed on unanimous consent at some point in the future. Likely without debate. There isn't even any language to accompany its introduction.

UPDATE @ 10:21

Hamdan was decided.

The Supreme Court ruled on Thursday that Congress did not take away the Court's authority to rule on the military commissions' validity, and then went ahead to rule that President Bush did not have authority to set up the tribunals at Guantanamo Bay, Cuba, and found the "military commissions" illegal under both military justice law and the Geneva Convention. The vote was 5-3, with the Chief Justice not taking part.

The Court expressly declared that it was not questioning the government's power to hold Salim Ahmed Hamdan "for the duration of active hostilities" to prevent harm to innocent civilians. But, it said, "in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction."

Here is a (future) link to the Hamdan v. Rumsfeld decision.

Hamdan v. Rumsfeld (05-184), 2006

More links, later, as news reports and commentary filter out.

UPDATE @ 10:56

Andrew McCarthy agrees with the administration, Common Article 3 of the Geneva Conventions does not apply to the people held at Gitmo.

Keep clicking on the ScotusBlog announcement - it is being updated periodically as the blog authors (hat tip to Marty Lederman - I am a big fan of ScotusBlog) read and analyze the ruling.

See also, just printed Hamdan Summary -- And HUGE News, which says, in part:

The Court appears to have held that Common Article 3 of Geneva aplies to the conflict against Al Qaeda. That is the HUGE part of today's ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons "shall in all circumstances be treated humanely," and that "[t]o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"--including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment. See my further discussion here.

This almost certainly means that the CIA's interrogation regime is unlawful, and indeed, that many techniques the Administration has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes).

I think I will avoid linking to mainstream media reports on this subject for now, on the principle that their first reports, especially on complex legal matters, are ill informed and inaccurate. There are plenty of political chatboards that will occupy themselves with the initial drek put out by the press. As a caveat, if I read one that appears well composed and analytical, I'll link it here.


Meanwhile, in the Senate, Senator McCain is trumpeting the success of the McCain-Feingold law, as the amount of money donated to politicians has increased the number of small donors. McCain is on a rail against 527 organizations.

UPDATE @ 11:15

The Hamdan decision is now online - 1.4 Mb in size. Read it, and bypass the pundits.

Hamdan v. Rumsfeld (05-184), 2006

UPDATE @ 16:20

Senator Specter is on the Hamdan case. He points out that the Graham amendment relating to jurisdiction did not accomplish what Senator Graham purported, and that SCOTUS took the case in spite of the Graham amendment. He's rubbing salt into Senator Graham. This may play out, looking forward, as Senators Graham and Kyl aim to legislate tribunals that comport with the Hamdan decision.

UPDATE @ 18:35

Senate is onto stem cell stuff, with Reid and Frist exchanging kudos. It's clear (again) that Senator Frist favors, strongly supports, embryonic stem cell research.

UPDATE @ 18:58

Senate is done for the weekend Homeland Security Approriations Bill will be up at 5:30 PM on Monday, July 10.


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