Senate Live - August 1, 2006

The Senate is scheduled to start at 9:45 PM today, skipping morning business and going directly to debate on ...

S.3711
The Gulf of Mexico Energy Security Act

A unanimous consent agreement provides that at 5:00 PM, the two pending amendments will be withdrawn (these would be the "date of enactment" amendments that Frist called up in order to prevent other amendments from being introduced) and the Senate will proceed to a vote on S.3711 with no intervening amendments or action.

S.3711 will pass easily, then Senator Frist will take the Senate into the more contentious business. The general outline of the week can be gleaned from his opening remarks yesterday ...

SCHEDULE - July 31, 2006

Mr. FRIST. ... We now have a freestanding pensions bill that has arrived from the House which we will need to consider before the close of the week. We also have a bill that relates to an increase in the minimum wage, death tax reform, and some other very important tax provisions. I expect to schedule that bill at the earliest time, and I hope we can get cooperation from all Senators. The Senate will address that package before we adjourn for the recess. Chairman Stevens is ready to bring the Department of Defense appropriations bill to the floor, and we will look for a window to have that bill debated and voted on as well. There are a number of nominations--judicial and otherwise--that I hope we can consider this week.

A little more detail on the named legislative items ...

• Modification to the estate/death tax (H.R.5638, H.R.5970 - Minimum Wage and Estate Tax Act of 2006);
• Pension reform ( H.R.4 - Pension Protection Act of 2006 (new), rather than H.R.2830 - Pension Protection Act of 2005 (in conference));
• Department of Defense appropriations for FY 2007 (H.R.5631)

As for nominations, the Senate Executive Calendar continues to list the contentious Circuit Court nominations of Myers, Boyle and Smith; none of which will be called up this week. I believe that Senator Frist was referring to the non-contentious DC District Court nominations (not federal courts) of Anderson, Blackburne-Rigsby, and Thompson; plus the nomination of Moore to the Circuit Court for the Federal Circuit.

With regard to non-judicial nominations, I have no speculation, except that it's clear that John Bolton will not be on the Senate's agenda this week ...

Senate panel puts off Bolton vote to September
July 31, 2006

WASHINGTON (Reuters) - At the urging of Democrats, the Senate Foreign Relations Committee has put off a vote until September on whether to keep John Bolton as U.S. ambassador to the United Nations, committee aides said on Monday.

For a good laugh, read Senator Biden's press release of July 20, where he asserts that Bolton is not entitled to an up or down vote. His opening statement from the July 27, 2006 hearing is likewise a hoot. One of the highlights of the hearing, maybe the highlight, was the exchange between John Bolton and Senator Kerry, in Part II of the transcript ...

July 27 Bolton Hearing transcript - Part I
July 27 Bolton Hearing transcript - Part II

Summary: no fireworks today, but we may learn the planned sequence for taking up the pensions, estate tax/minimum wage, and DoD appropriations matters.

UPDATE @ 10:32

An opening conference on the floor, between Frist and Reid, with Durbin standing nearby. Must be negotiating the order for the week.

Senator Frist addressed the order of taking up the pensions and the estate-tax/minimum-wage bills (referred to as the "trifecta" bill) by saying that he hasn't yet determined the order. He said that the pensions bill is a "must pass" this week, otherwise some pension plans will be absorbed by federal pension guarantee facilities. He noted that going to conference isn't an option, as it creates delay. [No kidding, the last pensions bill went to conference in March].

He said that if the estate-tax/minimum-wage bill is not taken up this week, and is "killed" by refusal to take it up - oh, he said that vote will come on Friday, so he tipped his hand that pensions will come before "trifecta." The pensions bill has the support of Senator Kennedy, so it seems it will be the order of business tomorrow.

Senator Frist also brought up the Child Custody Protection Act (S.403), which the Democrats have objected to sending to conference to reconcile with H.R.748. Senator Durbin speaks to object, and says the Democrats will continue to object until an agreement is reached on one provision of the bill.

Senator Reid rose to object to taking up estate tax, and to the GOP priorities in general, and mischaracterizes the estate tax bill as a "repeal." He also mischaracterizes Frist's comments as "take it or leave it" as far as acting on those measures this week. Frist's position is "vote on the measures this week, or they won't come up again in this Congress."

Senator Frist noted that the estate tax bill is not a repeal, defended the minimum wage provisions of the "trifecta" bill, and likewise defended the progress made by the Senate in the 109th Congress.

Senator Durbin addressed a fairly inflammatory question to Frist, asserting that the estate tax modification would increase the national debt by one trillion dollars -- the inflammatory part? "Is there any limit to the debt you would leave to the people of America, in order to benefit the wealthy?"

Senator Reid used both the "Alice in Wonderland" and "Land of Oz" analogies to describe his sense of action in the Senate. Hey, his mind may actually be that confused.

At any rate, the bulk of "debate" so far this morning has been on the "trifecta" bill. I heard no discussion that clarified a schedule for taking up the DoD appropriations bill.

UPDATE @ 10:42

Spoke a bit too soon. Senator Frist indicated that the Senate may bring up Senator Stevens' bill (DoD appropriations) tonight.

"The" vote on the "trifecta" bill will be on Friday. I'm not sure if Frist is referring to a vote on a motion to proceed, or a vote on the bill itself.

McConnell: "Senator Reid stands up and says this is a do-nothing Congress, and then goes on to list the measures that the Democrats are blocking." Now that's a good line.

UPDATE @ 11:54

With regard to the Keisler nomination and hearing, this from howappealing.law.com ...

Last Thursday, all eight Democratic Senators on the Judiciary Committee sent a letter to the committee's chairman asking that today's confirmation hearing be postponed. And the Alliance for Justice, People For the American Way, and various other organizations sent a similar letter yesterday.

The gist of the Democrats objections are a) the DC Circuit Court is fine with 10 judges, and Keisler would be the 11th one, b) hearings are premature because the ABA report isn't available, and c) vacancies that are "judicial emergencies" should have priority in hearing and confirmation.

UPDATE @ 14:36

Hat tip to http://www.confirmthem.com for a link to C-SPAN site for streaming ALL hearings.

Link to hearings in Dirksen Room 226 ...
rtsp://video.c-span.org/encoder/dirksen226.rm?mode=compact

The Keisler hearing is underway now. I thought perhaps the Democrats might boycott and thereby cause an absence of quorum, but so far I have heard Senators Schumer and Kennedy.

UPDATE @ 15:03

Senator Feingold asks about Keisler's involvement in the NSA terrorist surveillance program, which Keisler has been "read into" as an administration official. He asks how Keisler will handle the recusal issue, for cases that may come before the DC Circuit, that involve that NSA program. Keisler says he would recuse himself from any case that involved the NSA wiretapping program, when asked specifically that question.

Senator Cornyn notes that the ABA has given Keisler a unanimously "well qualified" rating.

UPDATE @ 16:19

Hat tip to howappealing.law.com ...

Reporters Judy Miller and Philip Shenon lost their appeal in NYT v. Gonzales. This is the case where Judge Sweet ruled that reporters have a privilege that prevents investigators from reviewing telephone records. Patrick Fitzgerald had sought those phone record in order to find evidence of who (in the government) leaked to reporters that a raid was impending against Holy Land Foundation and against Global Relief.

Link to Judge Sweet's opinion (04 Civ. 7677)

Links to Second Circuit reversal ...

NYT v. Gonzales, 05-2639-cv - Majority Opinion
NYT v. Gonzales, 05-2639-cv - Dissenting Opinion

A follow-up news report is fairly accurate as to general lay of the case, but omits mention that Patrick Fitzgerald won his suit compelling Miller's testimony in the Plame case, up to the Circuit Court decision being denied cert by SCOTUS. The story is Court OK's Look at Times' Phone Records.

This affects the Senate because Senators Lugar, Biden, Dodd, Domenici, Graham, Grassley, Jeffords, Lieberman, Schumer and Specter have advocated legislation that protects reporters from investigatory intrusion, that is, a privilege with authority grounded in statute.

And almost as though "on cue," an op-ed in the Boston Herald touches this very subject.

Media shield law getting a boost - Sunday, July 30, 2006

First the good news: In Washington, Rep. Michael Pence (R-Ind.) announced there finally will be a hearing in the House on Sept. 14 on the bill that would protect a reporter from being compelled to identify a source unless there is an imminent threat to national security. The bill's Senate sponsor, Richard Lugar (R-Ind.), said he remains optimistic that a bill will pass before Congress adjourns this fall.

See S.2831 - The Free Flow of Information Act of 2006 for more details, and also discussed in Senate Live - May 18, 2006, at "Proposal for Reporter Shield Law." The later link has further links to a similar measure being introduced in 2005. As I said on May 18, I'm dead set against a shield law for reporters.

United States Senate Committee on the Judiciary
Reporters' Shield Legislation: Issues and Implications
Hearing of July 20, 2006 - with links to prepared testimony

All witness and member statements were in favor of passing a statutory privilege, including Mike Pence.

For the PDF averse, the language from the 2nd Circuit appellate opinion by Kearse and Winter that reverses Judge Sweet's finding of reporter privilege in favor of reporters Judith Miller and Philip Shenon in the Holy Land Foundation / Global Relief Foundation leak investigation. Judge Sack's dissent follows the majority opinion ...
NYT v. Gonzales, 05-2639-cv: Text (Opinion and Dissent)

UPDATE @ 17:17

The bill (S.3711) is headed for easy passage. Senator Reid voted in favor of it. My unofficial count at this point is 28 AYE to 7 NAY. My official prediction (made early this morning) was passing 65-34, with Snowe and Chafee being the GOP naysayers. Snowe just voted NAY at about 17:20.

UPDATE @ 17:28

I show 63 AYE to 22 NAY, with Levin, Schumer and Clinton in the AYE column. All done but for finishing. The margin will be wider than my 65-34 guess. I misguessed on Chafee, he voted AYE. My other guess was voting concluded at 5:35.

UPDATE @ 17:36

S.3711 - The Gulf of Mexico Energy Security Act was
PASSED on a 71 - 25 vote
GOP NAY Vote (unofficial, my ears and all): Snowe

And now we find out what leadership has planned for additional action.

UPDATE @ 17:41

Next up, H.R.5631 - Department of Defense appropriations for FY 2007, open tonight for debate only, with a unanimous consent agreement that no cloture motion will be in order until leadership has a chance to speak. Senator Stevens expresses that the intention is to get this passed by the Senate this week, so that conference staff members can work on it while the Senate is on August recess, and to facilitate passage in September.

UPDATE @ 17:46

Senator Reid notes that Senator Baucus lost a nephew that was like a son to him, a Marine, in Iraq this past Saturday. My prayers are with the Baucus families.

Montana senator's nephew dies in Iraq

UPDATE @ 19:23

Ahh -- this adds a little bit of clarity to the action plan for the rest of the week.

Senator Frist Morning Speech

... The Senate must clear the pensions bill, clean, so the President can sign it this month. We will act, and pensions will get done, without amendment.

Now, Mr. President, Senators are elected to decide, to vote, to act. So we will also vote this week on whether to stop a filibuster on the trifecta bill. And let no one be mistaken. If the Senate kills the trifecta bill, we will not return to it this year.

The "trifecta" bill (minimum wage, estate tax) will be subjected only to a cloture vote this week Friday (meaning the cloture motion will be filed tomorrow) and given that the Democrats don't want to take the bill up, the cloture motion will be on a motion to proceed to take up the bill.

The pension bill will be raised as well, and Senator Frist says that it must be handled -- debated without amendment, and voted on -- this week. Senator Kennedy supports the pension bill passed by the House, and so does Senator Frist. Gives reason for pause, I think.

My guess is that the DoD appropriations bill will be debated through tomorrow, and voted on as well. If the cloture vote on the "trifecta" bill is to happen on Friday, Frist needs to make a motion to take up the "trifecta" bill tomorrow. I think he can do that during leadership time, which would permit the DoD appropriations debate to go beyond tomorrow. The Democrats have clearly stated they will object to a motion to proceed to the "trifecta" bill, and the objection would be met with a cloture motion.

Once the "trifecta" cloture motion and cloture vote are set in place, the Senate can proceed to finishing the DoD appropriation bill, or to taking up the pensions bill. That would leave Thursday and Friday to complete debate and a vote on both measures, with a bit of a time cushion permitting the Senators to get out of town before mid-afternoon on Friday.

---===---

Senator Frist closes down the Senate ...

S.Con.Res.113 - concurrent resolution congratulating the Magen David Adom Society in Israel for achieving full membership in the International Red Cross and Red Crescent Movement
PASSED

H.R.5683 - Mt. Soledad PASSED!!!

S.707 - bill to reduce preterm labor and delivery and the risk of pregnancy-related deaths and complications due to pregnancy, and to reduce infant mortality caused by prematurity
PASSED

S.2146 - A bill to extend relocation expenses test programs for Federal employees
PASSED

A unanimous consent agreement was reached (for action sometime after the August recess) that at a time to be agreed to by majority and minority leaders, the Senate take up S.1566 - An original bill to reauthorize the Commodity Exchange Act, with the following agreement as to amendments and time allotments for debate and vote:

• Chambliss amendment agreed to
  
• Smith/Stevens amendment, 1 hour of debate
  
• Cantwell amendment, 1 hour of debate
  
• Feinstein amendment, 4 hours of debate
  
• Conrad amendment, 1 hour of debate
  
• 30 minutes of debate on the bill
  
• A vote on the bill, with the text of S.1566 as amended being substituted for H.R.4473

H.R.3682 - To redesignate the Mason Neck National Wildlife Refuge in Virginia as the Elizabeth Hartwell Mason Neck National Wildlife Refuge
PASSED

The Senate stands in adjournment until 9:30 Wednesday, with H.R.5631 - Department of Defense appropriations for FY 2007 being the order of business, and with an eye on having it completed before the Senate recesses for the balance of the month of August.

UPDATE @ 20:25

From ScotusBlog, the fallout from the Hamdan decision continues ... Government: Detainee cases must start over

UPDATE @ 21:00

Ed Whelan on Bench Memos on National Review Online has done a masterful job yesterday and today ...

ABA Testimony on Wallace Nomination - Part 1
ABA Testimony on Wallace Nomination - Part 2
ABA Testimony on Wallace Nomination - Part 3
ABA Testimony on Wallace Nomination - Part 4
ABA Testimony on Wallace Nomination - Part 5
ABA Testimony on Wallace Nomination - Part 6
ABA Testimony on Wallace Nomination - Part 7
ABA Testimony on Wallace Nomination - Part 8
Leaks vs. Improper Claims of Confidentiality
ABA Testimony on Wallace Nomination - Part 9

This is important analysis, but won't make a dent on the public psyche. Wallace may or may not be considered. I don't think he's a "hot" nomination (meaning highly desired by those who value traditional jurisprudence), and his nomination is perhaps a political reward. The issue here, in my opinion, isn't so much the nomination of Wallace as it is the integrity of the ABA. I'm pessimistic on any changes, the ABA survived thus far. Apropos of not much, I recall that Harriet Miers is/was an ABA bigshot, and her political/judicial leanings are more contemporary than traditional. In any case, I don't see any sea change that cuts the ABA off at the knees, but I find the criticism by Ed Whelan to be deserved and right on target.

Also on the subject of the ABA, this link to ABA Barwatch by the Federalist Society appeared in my e-mail this afternoon.