Tuesday, March 13, 2007

US Attorneys and Iraq

New week (week of March 19) and the Senate is on the same subjects as last week. So, instead of a separate post, I decided to start anew at the top of this one.

Last week, as you recall, our intrepid Senators handled a set of three Iraq resolutions and little else. They are apt to be back into Iraq debate later this week, but the first thing up will be a bill to amend the law regarding the replacement of US Attorneys.

S.214 - Preserving United States Attorney Independence Act of 2007.

  • Six hours of debate starting at 2 p.m. Monday, under the leadership of Senators Leahy and Specter
  • Kyl S.Amdt.459 setting nomination and confirmation timelines for replacement of US Attorneys
  • Sessions S.Amdt.460 establishing experience qualifications for court-appointed US Attorneys
  • Debate on each amendment runs for 3 hours, equally divided (I'm not sure if this indicates a total of 12 hours debate time)
  • On Tuesday, resume debate, with 90 minutes equally divided, where debate on the amendments is running concurrently
  • Voting will begin at 11:30 a.m. Tuesday, with votes in the following order with no intervening amendment - maybe short (2-10 minute) debate between votes
(The full text of the amendments is near the bottom of this page)

This bill doesn't dispose of the issue with Alberto Gonzales (seems to prevaricate), or with the accusations that some of the dismissals have untoward motives or improper lines of communication and/or influence, etc. I expect the subject will, just the same, give a venue for making accusations. Senators Schumer and Boxer, the stage awaits you.

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After the Senate passes the bill regarding replacement of US Attorneys, the Senate will be taking up the Iraq Supplemental Appropriations bill. This bill as passed out of House committee on Appropriations contains the same troop withdrawal deadline, Sept. 1, 2008, that was rejected as a stand-alone measure by the Senate.

Summary of the Emergency War Supplemental (65 kB pdf)

Highlights of extraneous material in the bill, from my point of view:

  • Does not fund two Joint Strike Fighters and five of six EA-18G electronic attack airplanes requested because they are unrelated to battle losses and considered not to be urgent.
  • Length of Deployment. Requires the Defense Department to abide by its current policy and avoid extending the deployment of units in Iraq in excess of 365 days for the Army and 210 days for the Marines. The President may waive this provision ...
  • By July 1, 2007, the President must certify that Iraq is making meaningful and substantial progress in meeting political and military benchmarks, including a militia disarmament program and a plan that equitably shares oil revenues among all Iraqis. If the President does not provide this certification then U.S. forces must begin an immediate redeployment to be completed no later than December 2007.
  • By October 1, 2007, the President must certify that Iraqis have achieved the political and military benchmarks. If he does not provide this certification then U.S. forces must begin an immediate redeployment to be completed by March 2008.
  • Should both certifications be provided, the Administration must begin redeploying U.S. forces from Iraq by March 1, 2008 and complete the redeployment by August 2008
  • Prohibits the establishment of any permanent military installation or base of U.S. Armed Forces in Iraq.

There is also some pork in the bill, quite a bit of it related to increasing federal subsidization of recovery from hurricane Katrina.

White House Fact Sheet: Four Years Later: New Strategy Requires Patience and Determination.

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Senator Feinstein did her homework, and correctly notes that from the mid 1800's until 1968, interim US Attorneys were named by Courts, and that involving the President in the naming is a new phenomenon, first instituted in 1986. Beyond that, as to her characterization of her conversations with Alberto Gonzales, I figure neither she nor he are sources of unbiased information. That said, the fact that Gonzales has substantially shifted his explanation comes as no surprise to me.

UPDATE @ 18:14

Nominees Kethledge and Murphy, both for the Sixth Circuit Court of Appeals, were renominated on March 19, 2007.


UPDATE @ March 20

At 11:38, before any results are read off, my wild guesses as to the outcome of the three stacked votes. (35-60, 35-60, 85-10). I'm pretty sure of the outcome, in any event, and see the vote margins as unimportant.

Kyl's S.Amdt.459 - setting nomination and confirmation timelines for replacement of US Attorneys, was REJECTED on a 40-56 vote. (11:56 a.m.)

Sessions's S.Amdt.460 - establishing experience qualifications for court-appointed US Attorneys, was REJECTED on a 47-50 vote. (12:15 p.m.)
GOP Nay votes: Hagel, Smith

Feinstein's S.214 - Preserving United States Attorney Independence Act of 2007, was PASSED on a 94-02 vote. (12:35 p.m.)

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Next up (after a two hour recess), S.Con.Res.21 - the budget resolution. Pretty dry material. I don't expect to have many comments for the balance of the week. The resolution will certainly pass - it has to.

Text (pdf) of Bill useful for page number references.


....oooo0000oooo....


The Senate has a couple irons in the fire for this week. [Week of March 12]

Mr. REID. Mr. President, last week, I asked unanimous consent with respect to S.J. Res. 9, along with several other resolutions regarding the subject of Iraq--that we proceed on these--and there was an objection. So I now move to proceed to Calendar No. 72, S.J. Res. 9, and send a cloture motion to the desk.

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Mr. REID. Mr. President, I will shortly move to proceed to S. 214, the U.S. attorneys bill. Before I do so, I would like to state for the record there are ongoing discussions about this bill and we have offered to the Republicans a proposal that would have a very limited number of amendments and debate time. I feel fairly confident at this time we can reach that agreement. There has been cooperation on both sides. If we are able to reach that agreement, then it will not be necessary to have a cloture vote. Therefore, if we reach agreement, it will be my intent to vitiate cloture on the motion to proceed.

In both cases, the cloture motion pertains to a Motion to Proceed to the Consideration of the bill. These cloture motions are not to limit debate on the bills themselves, but are a means to take the bill up so a vote MIGHT be taken at a later date.

Senator Specter is on board with pushing investigatory action on the matter of "firing" a number of US Attorneys. He wants facts before concluding the firings had a political component, and he is not in agreement with Senator Schumer's rush to judgement.

Pretty weak on Senator Specter's part - he's supposed to rush to defend the administration, not wait for facts. [for the snark-impaired, that's a serious dig against the hoard of knee-jerk administration defenders - Bush-bots]

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Over in the House, I see last week that Pence is pushing for a reporter shield law.

[Congressional Record: March 7, 2007 (House)]
[Page H2249]

  Mr. PENCE. Mr. Speaker, if there is anything we learned from the conviction of Vice Presidential aide Scooter Libby yesterday, it is that the first amendment and the freedom of the press are still behind bars. The need for a Federal media shield bill has never been more apparent. ...

  My own colleague, Congressman Rick Boucher, and I will be reintroducing the Free Flow of Information Act. I urge my colleagues in Congress to take it up expeditiously. It is time to restore the fabric of the first amendment freedom of the press.

Attorney General Janet Reno's Prepared remarks of June 14, 2000 make a great counterpoint. Worth reading, as it shows the investigative tack that is taken when a leak report is delivered to the Department of Justice.

Senator Kyl's proposed stiffening of leak laws brackets the other end of the spectrum of possible legislative activity, that is, one end gives reporters a shield, the other end stiffens penalties to leakers.

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The recent DoJ report that the FBI issued over 40,000 National Security Letters in 2005 reminds me that Specter and Feingold debated the number of NSLs in 2005, early in 2006. It looks as though Specter was wrong, and Feingold was right, about the number of letters. Citations on request.

Senator Specter talks about this today (Tuesday) as well. He's talking about the substance of FBI requests, rather than the numbers of them, which is the approach that I advocate. The substance matters - the numbers, they don't matter so much.

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The US isn't the only country where detainee treatment is an issue. The following JURIST article is a bit of a jaw-dropper.

UK judge dropped Iraq detainee abuse charges because tactics OKed

UPDATE @ 17:06

The Senate will soon be voting on S.4. The vote might be close, with the collective bargaining provisions being the major bone of complaint by the Republicans.

No big deal, one way or the other, at this point. The bill has to go to conference, and be voted on in whatever form emerges from that conference committee.

I'm guessing passage by a margin than is not veto-proof, and this margin will be used in conference to strip out the collective bargaining provisions. Everybody wins, the Democrats can vote for the collective bargaining, and the Republicans obtain the increased government this bill represents, but without the idiotic provision that permits the TSA workers to unionize.

S.4 - Improving America's Security Act of 2007, was PASSED on a 60-38 vote
GOP Aye votes: Collins, Snowe, Specter, Warner; Bond, Coleman, Dole, Murkowski, Smith, Stevens and Voinovich.

UPDATE @ 18:06

I'll be dipped. I predicted the vote count right on the button. Filling in the GOP Aye votes beyond the four "gimmies." I was going to put Voinovich in there, but I forgot whether or not he was still a Senator.

C-SPAN2 reports that Senator Reid is going to "work on" the Iraq resolution next. S.J.Res.9 - A joint resolution to revise United States policy on Iraq. Yet another flavor of Iraq resolution.

S.J.Res.9

  Whereas Congress and the American people will continue to support and protect the members of the United States Armed Forces who are serving or have served bravely and honorably in Iraq;

  Whereas the circumstances referred to in the Authorization for Use of Military Force Against Iraq Resolution of 2002 (Public Law 107-243) have changed substantially;

  Whereas United States troops should not be policing a civil war, and the current conflict in Iraq requires principally a political solution; and

  Whereas United States policy on Iraq must change to emphasize the need for a political solution by Iraqi leaders in order to maximize the chances of success and to more effectively fight the war on terror: Now, therefore, be it

  Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

  SECTION 1. SHORT TITLE.

  This joint resolution may be cited as the ``United States Policy in Iraq Resolution of 2007''.

  SEC. 2. PROMPT COMMENCEMENT OF PHASED REDEPLOYMENT OF UNITED STATES FORCES FROM IRAQ.

  (a) Transition of Mission.--The President shall promptly transition the mission of United States forces in Iraq to the limited purposes set forth in subsection (b).

  (b) Commencement of Phased Redeployment From Iraq.--The President shall commence the phased redeployment of United States forces from Iraq not later than 120 days after the date of the enactment of this joint resolution, with the goal of redeploying, by March 31, 2008, all United States combat forces from Iraq except for a limited number that are essential for the following purposes:

  (1) Protecting United States and coalition personnel and infrastructure.

  (2) Training and equipping Iraqi forces.

  (3) Conducting targeted counter-terrorism operations.

  (c) Comprehensive Strategy.--Subsection (b) shall be implemented as part of a comprehensive diplomatic, political, and economic strategy that includes sustained engagement with Iraq's neighbors and the international community for the purpose of working collectively to bring stability to Iraq.

  (d) Reports Required.--Not later than 60 days after the date of the enactment of this Act, and every 90 days thereafter, the President shall submit to Congress a report on the progress made in transitioning the mission of the United States forces in Iraq and implementing the phased redeployment of United States forces from Iraq as required under this section.

S.J. Res. 9 is sponsored by Senator Reid, and is co-sponsored by:
Mr. DURBIN, Mr. SCHUMER, Mrs. MURRAY, Mr. BIDEN, Mr. LEVIN, Mr. KERRY, Mr. FEINGOLD, Mr. REED, Mr. KENNEDY, Mr. ROCKEFELLER, Mrs. BOXER, Mrs. FEINSTEIN, Mrs. CLINTON, Mr. CARPER, Mr. AKAKA, Mr. BAUCUS, Mr. BAYH, Mr. BINGAMAN, Mr. BROWN, Ms. CANTWELL, Mr. CARDIN, Mr. CASEY, Mr. DODD, Mr. DORGAN, Mr. HARKIN, Mr. INOUYE, Ms. KLOBUCHAR, Mr. KOHL, Ms. LANDRIEU, Mr. LAUTENBERG, Mr. LEAHY, Mr. LIEBERMAN, Mrs. LINCOLN, Mrs. MCCASKILL, Mr. MENENDEZ, Ms. MIKULSKI, Mr. OBAMA, Mr. SALAZAR, Mr. SANDERS, Ms. STABENOW, Mr. TESTER, Mr. WEBB, Mr. WHITEHOUSE, and Mr. WYDEN

I have a feeling that the cloture motion to proceed to the consideration of S.J.Res.9 will go down to defeat, just as the previous three Iraq measures (S.Con.Res.2, S.470 and S.574) did, although the most recent one S.574, garnered a 56-34 majority vote. I give points to the Democrats for persistence.


UPDATE @ March 14

I thought this would go down to defeat, but now I'm sure it will pass. I'm amazed at the SMALL number of people who understand the procedural posture. The Senate is in the process of expressing a decision to vote on a Motion to Proceed to Consideration.

The Cloture Motion on the Motion to Proceed to the Consideration of S.J.Res.9 - A joint resolution to revise United States policy on Iraq, was PASSED on a 89-09 vote
NAY Votes: Allard, Bond, Bunning, Coburn, DeMint, Enzi, Hatch, Inhofe and Thomas.

The GOP plan must be to try to kill this after substantive debate, or to amend it to death. Plus, at some point, debate on an Iraq resolution would have to be allowed, and agreeing to engage in the debate can be a concession useful in future negotiations.

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At 2:48 p.m., a message from the House of Representatives, delivered by Ms. Niland, one of its reading clerks, announced that the Speaker has signed the following enrolled bills:

H.R. 342. An act to designate the United States courthouse located at 555 Independence Street in Cape Girardeau, Missouri, as the ``Rush Hudson Limbaugh, Sr. United States Courthouse''.

UPDATE @ 13:18

I'm making my usual wandering trip to my favorite websites, while the Senate is on quorum call.

Lyle Denniston will appear on C-SPAN this Sunday. If you follow the Supreme Court, you know who Lyle Denniston is, and you appreciate his efforts.

Court to consider detainee case schedule

The Supreme Court, at its private Conference on Friday, will consider the timing for its reaction to the two new appeals on the legal rights of detainees at Guantanamo Bay ... The detainee cases are Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196).

In lighter SCOTUS news, Lyle reports that the "Bong Hits 4 Jesus" case (Morse v. Frederick) will be heard on Monday. "Lighter," I suppose, if you aren't one of the parties to the case. I'm rooting for the kid.

Quite a few cases noted at the above link, click through if you are interested in the recent second amendment ruling or the prospects of televised SCOTUS arguments.

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Here's a reporter - a reporter! - who defends Patrick Fitzgerald's use of subpoena to obtain testimony from reporters in the Libby case, and who doesn't see Fitzgerald's action as having caused a rift in reporter privilege law. Those who are afflicted with Fitzgerald Derangement Syndrome should avoid reading the contents behind the link.

The Case for Patrick Fitzgerald: The Libby prosecutor didn't savage the First Amendment

Hat tip to howappealing.law.com.

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Balkin's article about laughter is ho-hum, but the New York Times article that it's based on is really fascinating reading. I bet there is an emoticon parallel to using laughter as punctuation. Volokh is on the subject too, great stuff!

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Also at Volokh, discussion on an article about man-made wonders. This is a good test - think about it before you click on the link.

More significantly, Istanbul's Hagia Sophia is "a church that was first built in 537 B.C. as a Mosque when the city fell to the Ottomans."

How many mistakes are there in that one line?

What's that got to do with the Senate? Ummmm. Nothing that I can see.

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On the subject of the Senate, and on S.J.Res.9 in particular, the Senate has NOT taken up the measure. There is 30 hours of debate before voting on the motion to take it up. It would be quite an ironic fate if, at that point, the Motion to Proceed was defeated.


UPDATE @ March 15

Looking ahead to the Emergency Supplemental Appropriations Bill for Iraq and Veterans (where the Democrats will attempt to curtail military action in Iraq via the purse-strings device) ...

WAR SUPPLEMENTAL CONTAINS GOODIES

  (Mr. CARTER asked and was given permission to address the House for 1 minute and to revise and extend his remarks.)
  Mr. CARTER. There is talk that the $100 billion war supplemental will include an extra $20 billion in goodies. Such projects are seemingly irrelevant to the mission our soldiers are expected to carry out. For example:
  $60 million for the California and Oregon salmon fishery disaster of '06;
  $400 million for timber revenue program in Oregon;
  $400 million in low-income home energy assistance for State grants;
  $448 million unrequested funds for State children's health insurance
programs, and;
  a half a billion dollars for wildfire management and suppression.
  Now, these are valuable projects, but they don't belong in an emergency war supplemental. They appear to be nothing more than an attempt to buy votes at the expense of our soldiers in the war on terror. The supplemental is meant to be an emergency troop funding vehicle and there is no excuse for $20 billion worth of pork in that supplemental.
  Let this Congress respect our soldiers and deny this pork.

The proposed legislation is described in summary fashion in this March 8, 2007 press release. A Full Committee Markup is scheduled for 9:00 AM today (March 15), 2359 Rayburn House Office Building. Here is a link to a historical list of emergency supplementals on military action in Iraq, something I bumped into while looking for some proposed legislative text.

This Congressional Research Service Introduction to the Appropriations Process (210 kB pdf file) is a great reference for the budget and appropriations process, overall. It includes reference to House and Senate rules that prescribe the hurdles against amendments for additional spending, and describes the relationship between "Authorization" and "Appropriation." That last point is HUGE, yet my gut instinct tells me that about one citizen in a few hundred is basically aware of the difference, and fewer than one in a thousand is aware to the point that they automatically think to track a given issue (I'm thinking specifically about the recent Secure Fence Act) through both steps.

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Not a big deal, just one of my random, minor observations, Senator Clinton intends to offer an amendment to the Iraq, Veterans Emergency Supplemental, to fund medical care for first responders to the WTC. She offered and withdrew the amendment as being attached to the Homeland Security bill, noting that (and where) she would try again.

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National Review Online's Symposium on the Parker decision is uplifting reading for those who view the second amendment as noticing a personal, individual right that means to keep balance between "the people" and "the government," by putting some teeth into the notion of "consent of the governed."

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I remain puzzled over the possible disposition of the Iraq Resolution, S.J.Res.9. At this point it is NOT (formally) the business of the Senate. The Senate has not agreed to take it up, only to limit debate on whether or not to take it up. Senator Reid has canceled plans to be out of the country on Friday, when the Senate would usually, in a perfunctory fashion (having overwhelmingly agreed to limit debate on the Motion to Proceed to the Consideration), agree to take up the bill for debate.

I noted above that it would be a very unusual twist if the Motion to Proceed did not pass. But if the Republicans insist on a certain amendment being able to be introduced and debated in the context of S.J.Res.9 (or if not "within," alongside/following), the Senate will find some way to move on to the next subject.

Whatever might be going down, it's politically visible enough that Senator Reid intends to be present on Friday, rather than absent.

  Mr. McCONNELL. Mr. President, let me just echo the remarks of the majority leader. I see that Senator Warner is now on the Senate floor. He and I had a conversation at noon about a proposal he hoped to offer. It is my understanding, I would say to my friend, the majority leader, that his proposal has just been handed to us. That was the reason for the delay this afternoon, with all due respect to the Senator from Virginia. I know he was working on drafting it, but that is the reason we have not been able to hopefully get to the point of having an agreement, which the majority leader and I both would like to have.

  We are ready for this [Iraq] debate, and now that Senator Warner is on the Senate floor and has his proposal, we will give a copy to the majority, and I will be able to see it myself, and hopefully, shortly, we will be able to enter into an agreement that will be satisfactory to both sides. Certainly, that is my hope and my expectation.

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Patterico explains the US Attorney Firings far better than I can. I can't think of anything to add. And, as I am generally wont to do, he thoughtfully points to (and provides) the source documents so the reader can verify (or differ with, but based on the same record) his conclusions.

Just the same, I think Congress will be doing the right thing by reversing its ill-advised grant of indefinite replacement-without-confirmation power to the Office of President.

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Reid notices that Warner and Ben Nelson have offered a "late" proposal regarding the Iraq Resolution, and Reid and McConnell are still working toward an agreement as to how to proceed. Senator Warner's proposal slowed down the negotiations, but McConnell is also optimistic that the Senate leadership can reach a consent agreement as to how to "wrap up" the Iraq Resolution, including an accommodation for debating or addressing the Warner/Nelson language.

UPDATE @ 11:33

Now we know the procedural and substantive framework for disposing of the current incarnation of Iraq resolution(s).

Senator Reid offered a unanimous consent request to take up S.J.Res.9, S.Res.107 (Warner/Nelson?) (This is a new proposal, by Murray), and S.Con.Res.20 (Gregg?) (This is Gregg's proposal - the Warner resolution did not get in the mix), with 4 hours of debate, equally divided, followed by votes on the three (mostly competing) measures in that order. McConnell objected.

Reid modified his unanimous consent request so that 60 votes are required to pass any of the three measures. There was no objection.

The Senate will also, this week (probably today), vote on the confirmation of three judges, one Circuit Court nominee (Hardiman - 3rd Circuit) and two District Court nominees. There are four District Court nominees on the Senate's Executive Calendar -- Bailey (Northern District of West Virginia), Wright (Central District of California), Wu (Central District of California), and Bryant (District of Connecticut).

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With regard to the US Attorneys bill (S.214), the Senate entered into a unanimous consent agreement that provides:

  • Six hours of debate starting at 2 p.m. Monday, under the leadership of Senators Leahy and Specter
  • Kyl amendment regarding nominations of US attorneys is in order
  • Sessions amendment will be in order
  • Debate on each amendment runs for 3 hours, equally divided (I'm not sure if this indicates a total of 12 hours debate time)
  • On Tuesday, resume debate, with 90 minutes equally divided, where debate on the amendments is running concurrently
  • Voting will begin at 11:30 a.m. Tuesday, with votes in the following order with no intervening amendment - maybe short (2-10 minute) debate between votes
    • Kyl amendment
    • Sessions amendment
    • S.214

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Back to the Iraq debate, which is now formally underway, Senator Inhofe notes that one of the three (S.J.Res.9 (Reid), S.Res.107 (Murray), and S.Con.Res.20 (Gregg)) is not even available for the Senators to read, and brilliantly observes that this makes it difficult to conduct a debate.

I find TWO of three to be unavailable at Thomas, you will too if you click on the links on March 15th. But the links will go live "in due course," which amounts to after the votes are taken.

UPDATE @ 12:35

Senator Specter is summarizing the various resolutions. He is against the Reid S.J.Res.9, because it micromanages the conduct of military affairs and purports to be a crystal ball. He describes the part of the Gregg resolution that says "Congress will not act to endanger troops" as one that all will agree with, but that further language in Gregg's amendment seems to entirely circumvent the Congress's purse-string role.

According to Senator Specter, the third resolution, filed an hour ago by Senator Murray, is similar to Gregg's, but also reaches into veteran's care. Senator Specter read the text of the Gregg and Murray resolutions in their entirety.

Warner's resolution did not get into the mix. Senator Specter talks about it a bit, just the same. His ultimate conclusion is that he won't support ANY of the three resolutions - I think that's what he said, although he might support both the Gregg and Murray resolutions on the basis that they don't interfere with or dictate Congressional authorization or appropriation activity in any way whatsoever.

The line up of speakers includes Lindsey Graham, Robert Byrd. Voting is scheduled to begin at 3:45 p.m. Get your guesses in early! Don't forget, 60 votes are needed to pass. I see the outcome as being determined by crossovers and interpretation of how the "funding" language in the Gregg and Murray resolutions will be construed and misconstrued in the course of follow-up public political rhetoric.

I predict Reid's goes down on party line, with the possibility of a few GOP crossovers (Snowe, Gordon Smith, maybe Coleman) and Lieberman almost certainly voting against. My pre-prepared vote report has a 54-44 margin for S.J.Res.9.

I predict Gregg's and Murray's will pass by wide margins, if not unanimously, as no Senator wants to have a record that shows a vote "against" language that says "support the troops." I may modify that prediction, depending on what sorts of interpretation speakers apply to the Gregg and/or Murray resolutions. My pre-prepared vote report has 85-13 for each of these - predictions just for fun and practice, mind you.

UPDATE @ 12:57

I corrected the bill number/name cross reference above and note the scheduled speakers, following Senator Byrd, are: Ensign, Tester, Kyl, a Democrat, Brownback, Warner, and Vitter.

UPDATE @ 13:25

Lyle Denniston's A 9/11 sequel: civil cases made more difficult is on the subject of the availability of classified evidence applied in criminal cases, to litigants in civil suits. The Fourth Circuit reversed a lower court ruling, and held that the courts are powerless to force the government to turn that information over.

Yeah, I know, what's this have to do with the Senate? Well, nothing that I can see, but I find the development an interesting one to ponder. It's probably worth the effort to read at least the Circuit Court opinion.

JURIST: Federal appeals court denies request for Moussaoui transcripts in civil lawsuit covers the same ground in succinct fashion. The ruling is based on inability to transfer evidence between Districts, and on the limits of power of one District Court over a different District Court.

UPDATE @ 13:32

Senator Vitter says that the Reid resolution, the language of S.J.Res.9, will also be offered to the Iraq Emergency Supplemental Appropriations Bill. Vitter goes on to note that President Bush would veto the bill if it contained that language. Hey, Senator Vitter, don't sweat - that bill will NOT contain the Reid language - you can take that to the bank. It'll be objected to as legislation in an appropriations bill, and it takes a supermajority (60) to waive that objection. See this basic tutorial for a lesson on the Congressional Budget Act.

UPDATE @ 13:58

Senator Feingold will vote against the Gregg resolution, on the grounds that it suggests a limitation on the Senate's power to control the purse-strings.

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The National Review Online has posted an article on the subject of Alberto Gonzales, and in particular on the subject of the firing and replacement of US Attorney's. One statement caught my attention. It's highlighted below, in context.

So there is plenty of political opportunism in the campaign to get Gonzales's scalp. But it's not just personnel that are at risk in partisan fights. Blunders in the U.S.-attorney controversy have already forced a costly reversal in policy. The administration has dropped its opposition to Democratic legislation that would restore federal judges' ability to appoint interim U.S. attorneys, a practice that the Bush administration had rightly seen as an improper intrusion on executive prerogatives.

That the proposed legislation is in any way an improper intrusion on executive prerogatives is pure, unmitigated and utter crap. Whoever signed onto that line didn't do their homework. The Constitution doesn't give the President the executive prerogative that that National Review Online has fabricated out of thin air. Under the Constitution, Congress is responsible to choose where to vest the appointment (and by inference, replacement) power.

First, see Article II, Section 2, of the Constitution itself. "... the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

So Congress has a certain power, under the Constitution, to vest the appointment power, for some offices, in a place other than the executive. Congress exercises that Constitutional power by passing legislation. From 1898 to 1986, duly enacted Congressional legislation provided that the replacement of US Attorneys would be done by the court, with zero input from the executive.

28 USC 546 : United States attorneys - Vacancies (notes)

1986 - Pub. L. 99-646 amended section generally. Prior to amendment, section read as follows: "The district court for a district in which the office of United States attorney is vacant may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court."

Even though it's composed as an "appointment" matter, this current political issue is focused on REPLACEMENT. Initial nomination and appointment is subject to a Senate confirmation process, handled under a different statute. The proposed change in legislation (reverting it to the language in place from 1986 until 2006, and expressing the handling of the current replacement appointees) is directed to solely to the situation of replacement.

Honest show of hands -- how many readers thought the Democrats were advocating something foreign to our Constitution? How many thought the President had historically been the authority for naming replacement US Attorneys?

UPDATE @ 15:51

Voting is under way on the Reid proposal, S.J.Res.9. Early returns (as of 15:58) are 16-13, pure party-line split.

UPDATE @ 16:14

There are more DEM crossovers than I thought there would be, this didn't even get 50 votes. Snowe voted NO.

S.J.Res.9 A joint resolution to revise United States policy on Iraq, was REJECTED on a 48-50 vote (60 votes were required for passage)
GOP Aye Votes: Smith
DEM Nay Votes: Lieberman, Pryor and Nelson (NB)

I'm glad that didn't even get 50 votes. You can bet that the Democrat hard core folks will be burning up phone lines to Lieberman, Pryor and Nelson (NB). Pryor is a bit of a surprise there, to me.

It's not getting any press, but this is a significant defeat for the proposition that the public is ready for Congress to manage the United States out of the Iraq war. While the knee-jerk reaction of the right is "hooray!," I remind the reader that where Congress lacks or is circumspect on exerting power, the political will of the public is periodically exerted as to selection of a Commander in Chief.

An on to the next one, Murray's S.Res.107.

Senator Inhofe says he will vote for both the Murray and Gregg resolutions. So any NAY votes to either Murray or Gregg will be outliers. Voting on the Murray resolution started at 16:18.

UPDATE @ 16:34

A little bit longer than 10 minutes, but hey, these are Senators. Pretty close to unanimous. Specter voted Aye - I must have mistaken his comments at the time he made them.

S.Res.107 (Murray) A resolution to support the troops and insure funding, was PASSED on a 96-02 vote (60 votes were required for passage)
NAY Votes: Corker, Hatch

S.Res.107

  Resolved, That it is the sense of the Senate that--

  (1) the President and Congress should not take any action that will endanger the Armed Forces of the United States, and will provide necessary funds for training, equipment, and other support for troops in the field, as such actions will ensure their safety and effectiveness in preparing for and carrying out their assigned missions;

  (2) the President, Congress, and the Nation have an obligation to ensure that those who have bravely served this country in time of war receive the medical care and other support they deserve; and

  (3) the President and Congress should--

  (A) continue to exercise their constitutional responsibilities to ensure that the Armed Forces have everything they need to perform their assigned or future missions; and

  (B) review, assess, and adjust United States policy and funding as needed to ensure our troops have the best chance for success in Iraq and elsewhere.

In one of the ironies of the Senate, with nearly all Senators in the chamber, Senator Reid suggests the absence of a quorum. This happens from time to time, and I get a chuckle out of it every time.

Senator Reid releases the Democrats to vote however they like, and indicates that he will vote against the Gregg amendment. Gregg reads the amendment as rebuttal.

Voting on the Gregg resolution started at 16:41. I'll laugh if Reid is the solitary NAY vote.

UPDATE @ 16:55

S.Con.Res.20 (Gregg) A concurrent resolution to support the troops and insure funding, was PASSED on a 82-16 vote (60 votes were required for passage)
NAY votes: Akaka, Biden, Bingaman, Byrd, Corker, Dodd, Feingold, Kennedy, Leahy, Menendez, Murray, Reed, Reid, Rockefeller, Sanders and Whitehouse.

S.Con.Res.20

  Resolved by the Senate (the House of Representatives concurring), That it is the sense of Congress that Congress should not take any action that will endanger United States military forces in the field, including the elimination or reduction of funds for troops in the field, as such action with respect to funding would undermine their safety or harm their effectiveness in pursuing their assigned missions.

Bernie Sanders voted AYE, then changed his vote later. LOL.

---===---

Confirm three judges (Baily, Wright and Hardiman), perhaps voice vote or unanimous consent, and the Senate can move into the weekend. No votes on Friday, cloture having been vitiated on the US Attorney's bill.

Leahy asked for a voice vote on Hardiman.

As of 17:22, the nomination of Hardiman to be a Circuit Court judge for the 3rd Circuit was CONFIRMED on a 95-00 vote.

Baily and Wright were confirmed on voice votes.

Back into morning business. No further action until Monday, and no votes until Tuesday. The US attorney's bill is not itself a contentious matter. The Democrats will probably use the debate to beat up on Alberto Gonzales.

I've not liked Gonzales for some time (he is a lightweight, and his prevarications, which are numerous, make the Republicans look like idiots), so I'm not agitated by the Democrat's disingenuous line of argument here.


UPDATE @ March 16

I went to practice guitar -- an old and half-baked hobby of mine, dropped decades ago, and picked up again about 10 days ago (but that's a whole 'nother line of discussion!) -- and missed the adjournment at 6:31 p.m. The Senate is out for the weekend. Senator Reid could have made his trip to Mexico. Come to think of it, I bet he IS making it. He is if it was important to him in the first place.

This morning, I went back and inserted the operative text from both the Murry and Gregg proposals, as a matter of having a brief record for future reference.

---===---

With regard to the scheduled debate next week, on the subject of the process of appointing replacement US Attorneys, here is the text of the Sessions and Kyl amendments. My first inclination is to oppose both amendments, but I am open to persuasion. Just the same, I really don't like S.Amdt.460, the one that purports to "require appropriate qualifications." And the re-nominate, re-confirm arrangement, with date deadlines, strikes me as impractical. The Senate is incapable of meeting date deadlines, see, e.g., the Senate failure in the 2nd session of the 109th Congress to meet the deadlines for the ordinary and routine appropriations process.

The amendments will be offered on Monday, and will be debated within the 6 hours agreed to by unanimous consent, or as long as the Senators want to take on Monday. The two amendments and the underlying bill will be voted on Tuesday, probably around noon. I hope to see both amendments rejected, and the bill passed.

AMENDMENT NO. 459

(Purpose: To ensure that United States attorneys are promptly nominated by the President, and are appointed by and with the advice and consent of the Senate)

  On page 2, strike line 1 and all that follows and insert the following:

SEC. 2. PROMPT NOMINATION AND CONFIRMATION OF UNITED STATES ATTORNEYS.

  Section 541 of title 28, United States Code is amended--

  (1) by redesignating subsections (b) and (c) as subsections (c) and (d), respectively; and

  (2) by inserting after subsection (a) the following:

  ``(b)(1) Not later than 120 days after the date on which a vacancy occurs in the office of United States attorney for a judicial district, the President shall submit an appointment for that office to the Senate.

  ``(2) Except as provided in paragraph (3), not later than 120 days after the date of the submission of an appointment under paragraph (1), the Senate shall vote on that appointment.

  ``(3) If the President fails to comply with paragraph (1) with regard to the submission of any appointment for the office of United States attorney, paragraph (2) of this subsection shall have no force or effect with regard to any appointment to the office of United States attorney during the remainder of the term of office of that President.''.

SEC. 3. REPEAL OF INTERIM APPOINTMENT AUTHORITY.

  Section 546 of title 28, United States Code, is repealed.

---===---

AMENDMENT NO. 460

(Purpose: To require appropriate qualifications for interim United States attorneys)

  On page 2, line 23, strike the quotation marks and the second period and insert the following:

  ``(e)(1) A district court appointing a United States attorney under subsection (d) shall not appoint a candidate--

  ``(A) unless that candidate is an employee of the Department of Justice or is a Federal law enforcement officer (as that term is defined in section 115 of title 18); or

  ``(B) if the court learns that candidate is under investigation or has been sanctioned by the Department of Justice or another Federal agency.

  ``(2) Not less than 7 days before making an appointment under subsection (d), a district court shall confidentially inform the Attorney General of identity of the candidate for that appointment.''.


UPDATE @ March 19

No doubt confusing to some, but I am appending material from the week of March 19 to the top of this page, at least for a day or two.

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