Monday, March 31, 2008

April Fools Week - 2008

The Senate resumes, after Easter recess, with a motion to proceed to the Foreclosure Prevention Act of 2008 (in the shell of H.R.3221). See Senator Reid's Press Release for a brief description.

Senator McConnell's Press Release ("The Next Eight Weeks") contains his opening remarks from the floor of the Senate, and touches on:

  • Federal intervention in the housing market
  • Passing FISA amendments and "get out of court" legislation
  • "the farm bill"
  • Colombian Free Trade Agreement
  • Supplemental appropriations to fund military action in Iraq (and a desire to avoid "transition the mission" statutory language)
  • Advice and consent votes on pending judicial nominees

April 1

Some trivia/minutia found on today's legislative calendar, the Senate is, on Calendar day April 1, 2008, on Legislative Day March 13.


Senate Democrats removed Senator Johnson as Chair of the Senate Ethics Committee.

S. Res. 492
    Resolved, That Senate Resolution 27 (110th Congress) is amended, effective January 1, 2008, by striking all from ``ETHICS:'' through ``72a-1f'' and inserting ``ETHICS: Mrs. Boxer (Chairman), Mr. Pryor, and Mr. Salazar''.


February 28: Cloture to limit debate on a motion to proceed to H.R.3221 - a vessel for S.2636 - the Foreclosure Prevention Act of 2008, was REJECTED on a 48-46 vote.

Not to worry, there will be a do-over today. Groundhog Day instead of April Fools!

1.--Ordered, That at 2:15 p.m. on Tuesday, April 1, 2008, the Senate proceed to the motion to reconsider the vote by which cloture was not invoked on the motion to proceed to H.R. 3221 ... further, that at 2:30 p.m., without further intervening action or debate, the Senate proceed to vote on the motion to invoke cloture on the motion to proceed to H.R. 3221.

This is a true "do-over," because the cloture vote of February 28 (link to debate of February 28) was also on proceeding to a bill that reflects the Democrat's sense of how the Federal Government can best meddle with the housing financial market.

The White House Policy Statement on S.2636 contains a veto threat.

A difference that plays into today's cloture vote (that is, whether or not, and if so, under what terms a bill will come to the floor) is that in the interim from February 28 to now, a Republican bail-out alternative has been placed on the legislative calendar: S.2734 - "A bill to aid families and neighborhoods facing home foreclosure and address the subprime mortgage crisis."

The February rejection of moving forward was based on the age-worn objection that the majority was being stingy with debate and amendments.

And a non-substantive side-remark -- the fact that Senator Reid has used H.R.3221 as the vehicle means that there is a significant amount of "mortgage crisis" debate occurring under grossly misleading Congressional Record subtitles. No reasonable person expects to find substantial portions of Foreclosure Prevention debate under subtitles that recite "NEW DIRECTION FOR ENERGY INDEPENDENCE, NATIONAL SECURITY, AND CONSUMER PROTECTION ACT AND THE RENEWABLE ENERGY AND ENERGY CONSERVATION TAX ACT OF 2007."

14:30: Cloture to limit debate on a motion to proceed to H.R.3221 - a vessel for some variation on the Democrat's S.2636 - Foreclosure Prevention Act of 2008, and the Republican's S.2734, was PASSED on being reconsidered, on a 94-1 vote (Bunning) (Clinton, McCain, Obama, Inouye and Lautenberg not voting).

Senate Advances Bill to Stem Housing Foreclosures (Bloomberg)

Senate Banking Committee Chairman Christopher Dodd, a Connecticut Democrat, and the panel's top Republican, Richard Shelby of Alabama, are to write a new, bipartisan bill that will be substituted for the current proposal. Dodd said he hoped they could produce the bill by tomorrow at noon Washington time.

April 2

The to-be-determined housing, nee banking, bill is still not formally taken up, even though the motion to limit debate on taking it up was passed overwhelmingly. The 30 hours of post-cloture debate expires around 8 p.m. tonight.

1.--Ordered, That at 9:30 a.m. on Wednesday, April 2, 2008, the Senate resume the motion to proceed to H.R. 3221 ... that at 12:30 p.m. on Wednesday, April 2, 2008, the Majority Leader be recognized.


As they said they would, the GOP is (again, belatedly and probably to little effect) making an issue of judicial confirmations. Senators Specter and Hatch laid down the complaint, and Senator Leahy responded.

Following Senator Hatch's comments, Senator Durbin made one of his signature snarky comments, stating that "GOP" stands for "Graveyard of Progress." As though the Democrats are worthy of being credited with adhering to founding and general principles of good governance of a free people.

At any rate, on the subject of judicial confirmations, I blame the Democrats, the Gang of 14, and ex-Senator Frist for the stagnancy. The Senate as a whole, and this process was started by the Democrats and enabled by many Republicans, is abusing cloture in the confirmation process, resulting in the hurdle being set improperly "high," and power of choice being shifted to the Senate. It's arrogant, and it's contrary to the scheme of checks and balances established by the Constitution.

H/T HowAppealing (a few good stories at that link, including one reflecting on the "business methods may be patented" case known as State Street Bank), a link to Marcia Coyle's article, "Federal Circuit May Be in for Big Changes; A startling two-thirds of the court soon to be eligible for senior status."

The wall Street Journal editorializes on the subject of confirmations, in an OpEd entitled "Senate Shutdown." Senator Specter is making some idle threats.

Here's more of me on the subject of confirmations, in the comment section at Volokh Conspiracy.

April 3

Assuming the reports of a classified memorandum relating to the constitutionality of snooping are accurate, it is a bit more clear as to why the administration seeks to shield view of its surveillance rationale from the public. Being exposed as holding the fourth amendment entirely inapplicable is another reason, in addition to "telecoms won't cooperate in the future" and "it just isn't fair to make telecoms follow the law when the government asks them for assistance."

Memo Linked to Warrantless Surveillance - By PAMELA HESS and LARA JAKES JORDAN (AP)

For at least 16 months after the Sept. 11 terror attacks in 2001, the Bush administration believed that the Constitution's protection against unreasonable searches and seizures on U.S. soil didn't apply to its efforts to protect against terrorism. ...

"Our office recently concluded that the Fourth Amendment had no application to domestic military operations," the footnote states, referring to a document titled "Authority for Use of Military Force to Combat Terrorist Activities Within the United States."

The comments that I've read, mostly in a thread "The John Yoo Torture Memos Released" at Volokh Conspiracy, adopt a point of view that "military operations" necessarily connotes a physical armed presence of soldiers. I think the administration's view of "military operations" was radically broader than that. My guess is that the administration viewed a snoop order directed from a "military agency" to a telecom to be a military operation. It viewed the fourth amendment to be totally inapplicable when the extent of the military operation was limited to domestic snooping.

See, in the exact same vein, the argument that the AUMF amounted to Congressional authorization of the TSP.


A brief snip with useful links from JURIST: "Mukasey warns against bill curbing state secrets privilege."

S.2533 - State Secrets Protection Act.


From today's legislative calendar ...


Motion to proceed to the consideration of H.R. 3221

A unanimous consent agreement describes opening events thusly:

the Senate adopt the motion to proceed to H.R. 3221, and after reporting of the bill, Senator Dodd or his designee be recognized to offer a substitute amendment to the bill; and that following opening statements by Senators DODD and SHELBY, Senator Durbin be recognized to offer an amendment relating to bankruptcy.

Neither the substitute amendment (the base bill, S.Amdt.4387) nor Durbin's amendment (No. 4388) are in the April 2nd Congressional Record.


15:11 Some Senate Resolution (S.Res.501) just PASSED on a 95-0 vote

On the Mortgage Meddling legislation, Durbin's amendment is pending, but the Republicans won't vote on it on a simple majority basis. Senator Reid notices that the GOP won't even attempt a motion to table. Same old argument as to contentious amendments. Reid can file a cloture motion, if he wants to attempt to limit debate and force a vote -- there's where the 60 vote threshold arises. Senator Reid says the Democrats won't agree with the 60 vote margin. Say what? It's an inevitable artifact of Senate procedure -- he's stuck with it.

Senator Reid indicates that he may file cloture on the bill. Senator McConnell notes that Senator Reid is well aware of the 60 vote threshold, and that Reid's acting as though the minority insisting on a 60 vote margin is "odd" or unusual strains credulity.

Senator McConnell is willing to enter a consent agreement to vote on the Durbin amendment any time in the near future, at a 60 vote margin. Senator Reid notes the absence of a quorum. Looks as though the "bipartisan agreement to get on with foreclosure relief" has hit a snag.

15:35: Now a roll call vote to table the Durbin amendment, with the motion to table and the request for yeas and nays coming from the Democrats. A motion to table is not debatable. I think the motion to table will be defeated, and the amendment will live on.

15:58: Durbin amendment #4388 was TABLED on a 58-36 vote. The Durbin amendment falls.
DEMS who voted to table: Baucus, Byrd, Carper, Johnson, Landrieu, Lieberman, Lincoln, McCaskill, Nelson (NE), and Tester.

That's a genuine surprise to me.

Order of amendments to be debated, with votes perhaps this evening:

  • Voinovich/Stabenow 4406 (providing a corporate R&D/depreciation electable tax benefit) [PASSED on a 73-3 (?) vote on April 4]
  • Murray/Schumer 4397 (100 million dollars for housing loan counselors) [amendment fell on a point of order, obtaining 44 votes, short of the 60 needed]
  • Specter 4392 (bankruptcy and forced cramdowns to market value)
  • Feinstein/Martinez 4393 (federal licensing of mortgage brokers)
  • Kyl 4407 (index the capital gains exclusion on sale of residence to inflation) [amendment fell on a point of order, obtaining 41 votes, short of the 60 needed]

Objection by Senator Baucus to an Ensign amendment, which isn't on the list, so objection withdrawn. Voicing the objection gives a clue as to another amendment that will be negotiated away.

17:35: Senator Landrieu calls up S.Amdt.4389 (not one listed earlier), which is targeted at the Gulf Coast. It has the support of Senator Vitter. The amendment modifies the effect of the casualty deduction available under tax law. It has nothing to do with mortgage loan defaults or related issues, whatsoever.

20:19: Landrieu amendment 4389 was further amended, by unanimous consent, by amendment 4422.

20:28: S.Con.Res.72 - National Health Day or similar, passed.
20:29: S.Res.503 - 40th anniversary of Fair Housing Act, passed.
20:30: Adjourned until 9:00 a.m. tomorrow. Voting expected to begin as early as 9:05 on Voinovich (4406) and Landrieu (4389 as modified by 4422) amendments.

April 4

S.Amdt.4387 is the underlying bill.

09:28: The Voinovich-Stabenow amendment was passed nearly unanimously (results is short list above), and the Senate moves to the Landrieu amendment, which is modified yet again. Senator Wicker is in favor of this amendment (tax favors to natural-disaster-affected companies) as is Senator Vitter. A point of order is raised against the amendment, and the vote is on on waiving the point of order (60 votes needed). 09:50: A budget point of order against Landrieu #4389, as amended by #4422 and another, was WAIVED on a 74-5 vote The amendment was agreed to on a voice vote.
NAY votes: Corker, Craig, DeMint and Kyl.

No votes on Monday; Senator Reid will file a cloture motion on the underlying bill, and Senator McConnell concurs with this action in that both leaders intend the bill to be wrapped up by Wednesday next week.

Senator Reid plans a window on Thursday where Senators can absent themselves in order - Senator Leahy correct the schedule for Senator Reid that the Catholic Mass that was to be accommodated (visit of the Pope) is actually the week following.

Friday is a Senate Democrats retreat to Richmond, Virginia. So, in summary, it appears that the currently pending bill represents the bulk of action through next week, with a mystery subject (a mystery to me anyway) to be brought up on Thursday.

Senator Landrieu has another amendment on a completely different subject (from housing), and she is inquiring as to when she can introduce it, later today.


Another article in the wake of the Yoo memo of October 2003: Administration Asserted a Terror Exception on Search and Seizure. It illuminates some of the downsides that adhere to conducting legal analysis in a classified setting - the jailers who were prosecuted for abuses at Abu Grahib can now argue that their conduct was acceptable, under the administration's legal theory. In order to be a nation of laws, the laws (and a reliable sense of how they will be applied) need to be known, not secret.

This goes not just for detention and interrogation, but also for the limits of government surveillance as in tension with the fourth amendment.

However, the October 2001 memo arguing for unregulated military searches on U.S. soil has not been formally withdrawn and remains a secret but unclassified document, according to Justice Department spokesman Brian Roehrkasse.

April 6

Senator Specter on S.Res.493 - April 1

During the time from 11:15 a.m. on [March] 13th, until 2 a.m. on the 14th, the place was bedlam--absolute bedlam. We were considering amendments which had not been available for examination by Senators or their staffs. ...

... it is impossible to deal with an amendment which has not been filed and printed so that staff and Senators can review it. When the amendments are offered--as there is a right to offer them, under the existing procedures, on the spur of the moment ...

Say it isn't so! Senators cast votes without knowing what they are voting on! Well, color me unsurprised. The world's greatest dysfunctional legislative body, in glorious action.


Here are all of the mentions of FISA, in either house of Congress, from last week. Zero mentions in the Senate, nine entries in the House.

Search Congressional Record for "FISA" - March 31 through April 4, 2008

April 8

Yesterday during this Brief Exchange between Reid and McConnell on FISA, the Republicans rejected a 30 day extension of the now-lapsed Protect America Act (S.2664), and the Democrats rejected passing retroactive immunity for the telecoms.

McCONNELL: It is the litigation itself that endangers the program, not just the amount of money that might be awarded.

I continue to puzzle over why, if litigation itself endangers "the program," there is no call for repealing the statutory right to instigate civil litigation.


Senate Report 110-277 was ordered to be "star printed," a formality that often indicates upcoming debate. The report is on S.1638 - the Federal Judicial Salary Restoration Act of 2008.

A star print is a new, revised, and/or corrected version of a Congressional document. Its name comes from the star that is printed on the lower left-hand corner of the title page or cover. When a star print is released, it replaces the original version of the document.
Congressional Bills: Glossary


In part because I'm a strong believer that the 2nd amendment is about keeping the people in charge of their government (not about hunting), I found David Kopel's blog post, "Obama's Other Spiritual Mentor: Rev. Michael Pfleger" particularly informative and interesting. David Kopel wrote,

"In my view, it is relevant that a candidate has chosen spiritual mentors who are bigots or who are hostile to constitutional rights. Senator Obama's close relationship with Rev. Pfleger makes me less confident that a President Obama would be a strong defender of the entire Bill of Rights and of civic tolerance."

I suppose ones personal point of view depends on the terms of civic tolerance, but in general I object to the Democrat's legislative and judicial objectives. I think the notion of reliance on the government results in weaker individuals and a more co-dependent society. I am put off by the use of state force to approach uniformity in terms of individual economic power and well being (e.g., health care).

Not that I'm uncharitable, just that I think charity is best coming from the heart, and that it isn't "charity" anymore, when it comes by dint of state force.

I don't trust the Republicans either. "Socialism Lite" in my mind.


Three cloture motions ripened over the weekend; two of them pertinent to the pending Housing Finance bill that is being debated under a title of Energy legislation. One cloture motion on the substitute amendment, #4387, the other on the underlying bill, H.R.3221.

The third ripened cloture motion is to limit debate on a motion to proceed to S.2739 - Consolidated Natural Resources Act of 2008 (Forest Service, Departments of Interior and Energy Resources). S.2739 has some interesting "minutia" on the US relationships with Micronesia and the Commonwealth of the Northern Mariana Islands.

No votes in the morning. First vote at 2:15 p.m. or so this afternoon, to invoke cloture on the housing bill, followed by votes on one or two amendments (one by Senator Snowe, one by Senator Murray), and perhaps followed by votes on final passage.

Senator Reid suggested the following matters would be taken up before the next recess:

  • the patent bill
  • the highway technical corrections
  • the supplemental appropriations bill

Make note of the divergence between Senator Reid's list, and Senator McConnell's Press Release of last week ("The Next Eight Weeks"). A summary of McConnell's recent legislative priority list is at the top of this post.


H/T Orin Kerr at Volokh Conspiracy, I am LOL at US Patent Application 20070078663 - "Method and Instrument for Proposing Marriage to an Individual." It must be read to be appreciated. Non-legal types will want to skip over the claims; the description of the invention is much more entertaining.


Speculation on the laws of unintended consequences, by Nicole Gelinas and published at the NY Post: A Horrible Housing 'Fix' : Feds' Bailout Fixes Nothing, Adds Risk.

A broader collection of thoughts at The Heritage Foundation: "Why Is the Senate Passing a Bill That Increases Foreclosures and Depresses Home Prices?."

Why? Because they have to do something, and this is the best a minority in opposition could muster. I hope there is a veto, at least that would permit a smaller minority to prevent this counterproductive legislation.

Senator McConnell (ever the optimist) anticipates a good bill, saying "this is a targeted bill that will help homeowners in the short-term without jeopardizing the long-term economy."


The cloture motion to limit debate on the housing bill substitute amendment #4387 was PASSED on a 92-6 vote.
NAY votes: Bunning, Coburn, DeMint, Inhofe, Kyl and Specter.

18:32: The Senate stands adjourned until 9:30 a.m. tomorrow, when it will conduct an hour of morning business then resume debate of H.R.3221, the vehicle for the housing bailout bill.

The 30 hours of post-cloture time will run out at about 8:30 tomorrow evening. H.R.3221 will pass easily, but the final vote may be delayed until Thursday.

April 9

To amplify the "cloture," "post-cloture" situation on the housing bailout legislation, the cloture motion to limit debate on the substitute amendment was passed, but the cloture motion on the underlying bill is still pending. I see this as providing an opportunity to admit amendments and subject the bill to another 60 vote hurdle -- the cloture vote on the underlying bill is apt to be much closer than the 92-6 vote on the substitute amendment.

Press Briefing by Dana Perino - April 8, 2008

[the Senate bill, as amended] is not a bill that we could support.

The bill will likely do more harm than good by bailing out lenders and speculators, and passing on costs to other Americans who play by the rules and honor their mortgage debt obligations. In addition to the concerns with how the Senate treated the provisions we do like, the bill still retains many other provisions that we don't like -- provisions like the plan to fund purchases of foreclosed properties and a tax credit idea.

We have serious concerns that these elements and others would do little to help homeowners avoid foreclosure or reduce housing inventories. Fortunately, it doesn't appear likely that this bill will come to the President's desk, as the House has indicated that it plans to go its own way anyway.


President Bush submitted the materials relating to fast-track passage of the Colombian Free Trade Promotion Agreement to Congress. It has been assigned bill number S.2830 (this link is to the text of the bill) in the Senate, and H.R.5724 in the House.

Senators Brown and Stabenow spoke at length, and Senator Baucus spoke briefly, all against the agreement as constituted, and generally upset that it is in hand under the "take it or leave it" fast-track process.

WH Press Briefing relating to the proposed agreement
WH "Just The Facts" sheet relating to the proposed agreement


So far this year, Senator Smith has caused 10 duplicate entries of his "speech" on "The Matthew Shepard Act" to appear in the record. This is an exercise in being a broken record (harking back to the era of vinyl). He practiced the same sort of repetition last year. In his "speech," he touts legislation as a means to change hearts and minds. I find this notion to represent an arrogant attitude about the effect of law. I think Senator Smith is a putz.


18:41: The Senate adjourned for the day, without conducting a single roll call vote. Looks as though the housing bailout bill will consume the rest of the week, seeing as how the Democrats have a retreat on Friday.

April 10

A pair of UC agreements describe the upcoming legislative action. The cloture vote to limit debate on final passage of the housing bailout will not be taken; and likewise, the cloture vote to limit debate on the motion to proceed to S.2739 (Consolidated Natural Resources Act of 2008) will not be taken.

Following legislative action, the Senate will proceed to executive session and handle five nominations.

  • Morning business
  • 5 or 7 minutes of debate, then vote on Alexander #4429 - REJECTED on a 15-79 vote
  • 5 or 7 minutes of debate, then vote on Ensign #4419 - PASSED on a 88-8 vote
  • The substitute amendment is passed under UC
  • Vote, with no further debate, on passage of H.R.3221 - the housing bill - PASSED on a 84-12 vote (veto-proof majority)
  • A title amendment is agreed to upon passage

Debate time is 5 minutes on each amendment, with the possibility of 2 additional minutes if a point of order is raised and the vote becomes on waiving the basis for finding the amendment to be out of order.

  • Proceed to S.2739 - Consolidated Natural Resources Act of 2008
  • 2 hours of debate on a set of four Coburn amendments (#4519-22). All four rejected, votes noted and linked below
  • Dispose of the amendments
  • Vote, with no further debate, on passage of S.2739 - PASSED on a 91-4 vote
Handling S.2739 also disposes of a UC agreement made on December 19 last year, on the same subject, but under bill number S.2483.

From entries on Dec 20, 2007 and Jan 22, 2008:

S.2483 - National Forests, Parks, Public Land, and Reclamation Projects Authorization Act of 2007. This is a collection of approximately 50 bills, all passed by the House, some of which Senator Coburn has objected to, all bundled into one vehicle. The [December] UC agreement provides Senator Coburn with the ability to debate five amendments. (text of amendments #3961-3968 to S.2483 at this link)

Here's a brief summary of most of the amendments proposed in January, and a link to the text of amendments #4519-22, proposed yesterday.

  • #3961 (Paralleled by #4522) - Annual report on land owned by the Federal Government. (Coburn description of amendment and rationale - PDF) REJECTED on a 30-63 vote
  • #3962 - Owner consent required for Fed agency to assert control over land, where the control is something short of a "taking" that results in conveyance of title
  • #3963 (Paralleled by #4521) - Public referendum required before a state can confer control of state land to the federal government; such transfers of control authority to have a 10 year life and must be renewed by referendum (#3972 is a variation of this) (Coburn description of amendment and rationale - PDF) REJECTED on a 19-76 vote
  • #3964 (Paralleled by #4520) - Notification must be provided to persons whose land use will be regulated if/when their property comes within a National Heritage Area, and National Park / National Heritage enforcers must obtain property owner's written consent before entering the property REJECTED on a 27-67 vote
  • #3965 - Imposes conditions for presidential declaration of an area as a "National Heritage Area"
  • #3966 (Paralleled by #4519) - 1% of the funds allocated to the Secretary of the Interior to be made available to the Director of National Parks for disposition (sale) of assets on the candidate asset disposition list. (Coburn description of amendment and rationale - PDF) REJECTED on a 22-73 vote
  • #3967 - "The Secretary of the Interior shall not promulgate or enforce any regulation that prohibits an individual from possessing a firearm in any unit of the National Park System or the National Wildlife Refuge System"
  • #3968 - Commissions and studies under the bill must be public, and be reported. Study and commission members must have no financial conflict of interest limits, and study and commission recommendations must be cost-neutral

Then, as noted above, following disposition of S.2739, the Senate will move to executive session to consider the following nominations, with 4 hours of total debate time, equally divided between Senators Leahy and Specter:

  • Calendar No. 476 - Brian Stacy Miller - ED Arkansas
  • Calendar No. 477 - James Randall Hall - SD Georgia
  • Calendar No. 478 - John A Mendez - ED California
  • Calendar No. 479 - Stanley Thomas Anderson - WD Tennessee
  • Calendar No. 515 - Catharina Haynes - 5th Circuit (confirmed by voice vote)


An interesting story on the Parhat case, including a link to an oral argument transcript, available at SCOTUSblog since yesterday: Analysis: Skepticism on detention system.

April 11

Yesterday's debate on judicial nominations rehashes the history of the gang-of-14 and Democrat obstruction of confirmation votes (which Harry Reid calls, "the most important issue I ever worked on in all my political career is when the Republicans tried to turn the Constitution upside down with their so-called nuclear option. To think that they would throw away basically having the Senate be the Senate."

Senator Reid's speech should be read in its entirety. Then study the facts he grossly misrepresents about the history of confirmations.

Senators Specter, Cornyn, Hatch, Kyl, Brownback and Coburn conducted a prebuttal colloquy.


Debate on the Consolidated Natural Resources Act of 2008, worth checking the reasons for rejection of Coburn's amendments.


Senator Reid filed a cloture motion on a motion to proceed to H.R.1195 - To amend the Safe, Accountable, Flexible, Efficient Transportation Equity Act. The cloture vote is scheduled for 5:30 p.m. Monday, April 14. Senator Kyl voiced the GOP objection to proceeding to the bill, making this a clear case of "need" to file cloture in order to overcome objection.


House debate on Passage of H.Res.1092 and effectively neutralizing the 90 day "fast track" passage of the Colombian Free Trade Agreement. A formal reaction by the WH, in its release, "President Bush Disappointed by Actions of House."

April 15

The cloture vote on the motion to proceed to H.R.1195 having passed on a 93-1 vote (Senator Bond voting NAY), the Senate is now in the 30 hours of post-cloture debate on the motion to proceed.

That upon the conclusion of Morning Business on Tuesday, April 15, 2008, the Senate resume consideration of the motion to proceed to H.R. 1195, a bill to amend the Safe, Accountable, Flexible, Efficient Transportation Equity Act ...

The 30 hours of post-cloture debate expires this evening. If all 30 hours are used, today will be a speech / do-nothing day on whatever subjects strike the members' fancy.

Looking forward, Thursday is the papal mass, and Friday is typically a do-nothing day, so this complete week may well be consumed by "Corrections to the Highway Act."


H/T this post at the Volokh Conspiracy, the Washington Post is criticizing the Senate's pace of judicial confirmations. A bit slow on the uptake, but that's water over the bridge ... errr, under the dam, errr ... well, at any rate, it is what it is.

H/T HowAppealing, Ed Whelan speaks out on the subject of judicial confirmations, and blames the Democrats. I do too, mostly, but clearly recall Senator Frist's persistent and feckless inaction on 10 or so Circuit Court nominations, at least four of which had been passed by the Judiciary Committee and were available for a vote by the full Senate.

April 16

Lots of talk in the Senate yesterday, on the subject of judicial confirmations. Observers posting at, who maintain a more detailed first hand knowledge on a nominee by nominee basis than I do, dissected the talk in a series of three posts.

6th Circuit Deal
Some Progress on Judges?
Keisler Not Mentioned

President Bush shuffled the nomination deck slightly, which played a substantial role in Senator Reid's promise for more action. The shuffling consisted of withdrawing the Murphy nomination from the 6th Circuit, and nominating him for a District Court seat; and nominating "Helene White—a Democrat and ex-cousin-in-law of Sen. Carl Levin" to the 6th Circuit seat.

In an irony, the Democrats started yesterday by complaining about Republican obstructionism and the use of "filibuster" (referring to objection that requires cloture to overcome). Senator Reid had a bit more to say, at page S2996 in the Record, in the context of being in the 30 hours of post-cloture delay on the motion to proceed to the Highway Corrections bill.

The exchange between Senators Reid and McConnell starts at page S3012 in the Record, also in the context of Highway Corrections motion to proceed.

Mr. REID: Senator Leahy and I are going to do everything we can to approve three circuit court judges by Memorial Day.

Senator Reid also uttered comments that indicate the Democrats inclination to block some nominations that would be confirmed, if they were moved the the floor and voted on. In other words, he tempered expectations that certain long-pending nominations (rated well qualified by the ABA, but objectionable to a tiny minority of senators) would be moved out of the Judiciary Committee and onto the Senate's Executive Calendar.

Last year, we had a very controversial judge [Southwick]. One of the Senators on the Judiciary Committee [Feinstein] decided she would vote with the minority. As a result of that, a controversial judge was reported to the floor and ultimately approved.

Not so controversial. A 3/5 supermajority of Senators voted to confirm.

Southwick was nominated January 9, 2007, moved out of Committee on August 2. On October 24, cloture passed 62-35, and Southwick was Confirmed on a 59-38 vote.

After the beef about judicial confirmations was aired (and the entire exchange is worth reading), the Republicans lifted their objection to proceeding immediately to the Highway Corrections bill. The White House is critical of the bill (link to Statement of Administration Policy), but does not make an express veto threat.

Senator DeMint observed:

The 1982 highway bill had only 10 earmarks. That number rose to 538 in 1991, and 1,800 in 1998. The SAFETEA-LU highway authorization bill we are talking about today contained an inexcusable 6,000 earmarks, at a cost of well over $20 billion and now nearly 500 changes in the technical corrections package.

So, today will be a pork-festival! On the taxpayers dime -- natch.


Searching for mentions of FISA in yesterday's Congressional Record (such mentions continue to be rare, and all two of yesterday's mentions were made "in passing"), I notice Senator DeMint is, besides criticizing the pork-laden Highway Corrections bill, advocating federal action on health care.

Conservative principles? You be the judge.

we have much more pressing needs that deserve our time and attention, such as providing health insurance to the millions of uninsured across this Nation, making health care more affordable, and passing the FISA reauthorization bill to protect our homeland.


More Patent Humor posted at Volokh Conspiracy. Well, that stuff makes me laugh, and I have to say I was unaware of a song being dedicated to an old "public use" case in patent law.


And on a serious subject, SCOTUS has handed down its decision relating to the use of lethal injection to carry out a death sentence. SCOTUSblog has the usual fine summary and links: Today’s Opinions.

The Chief Justice announced the judgment of the Court and delivered an opinion in which Justices Kennedy and Alito joined. Justice Alito also filed a concurring opinion. Justice Stevens and Breyer each filed an opinion concurring in the judgment. Justice Scalia and Thomas each filed an opinion concurring in the judgment, in which the other joined. Justice Ginsburg filed a dissenting opinion in which Justice Souter joined.

The dissent isn't anti-death-penalty. It calls for a remand to determine the adequacy of Kentucky's protocol for determining that the anesthesia dose (the first of three injections) has rendered the convict unconscious and unable to feel pain.

It strikes me as incongruous, that the law objects to inflicting pain in carrying out a death sentence; but does not object to pain-inflicting interrogation techniques. Maybe the logic is that state action as interrogation isn't punishment, and therefore isn't subjected to the "cruel and unusual" limitation.


Judge orders mistrial in Miami terrorism case - USA Toady

[U.S. District Judge Joan] Lenard set an April 23 hearing on whether a third trial would occur. U.S. Attorney R. Alexander Acosta said in a statement a decision on whether to try the men a third time would be announced at that hearing.

Obviously, the case against the defendants isn't very strong.


Steven Aftergood at FAS writes about Senator McCain's support of a statutory privilege against testifying, to be granted to "the press." Press-shield, in shorthand. I'm against this sort of privilege in general (while I would find a patient/doctor, priest/penitent and spousal privilege, I disagree with SCOTUS in the Jaffe v. Redmond case, for example); but my opinions aside, one ought to examine McCain's point of view.

I'm not sure which side he would come down on, in an investigation into the leak(s) relating to the administration practice of undertaking broad snooping without submitting to judicial oversight, on communications involving people located on US soil.

I take a very, very dim view of stories that disclose classified information that unnecessarily threatens or makes it more difficult to protect the physical security of Americans. I think that has happened before, rarely, but it has happened. I think the New York Times' decision to disclose surveillance programs to monitor the conversations of people who wish to do us harm came too close to crossing that line. And I understand completely why the government charged with defending our security would want to discourage that from happening and hold the people who disclosed that damaging information accountable for their action.

That waffling is meant to appease both sides. "Too close to crossing that line" means exactly what? Reading McCain's speech (to reporters), I come to the conclusion that he is trying to invest them with a sense of being granted "privileged insider" status - elite members of society - and hoping the press rewards him for his favoritism.

On the subject of the leak of the Terrorist Surveillance Program, I don't think disclosure of any snooping policy amounts to a disclosure of properly classified procedures and methods (any more than FISA, a Public Law, does), so I reject the contention that the NYT article ran afoul of the Espionage act. But I also wouldn't hand out a press privilege to overcome the abuse of investigatory and prosecutorial discretion, should an administration abuse its discretion in order to prevent its policies from becoming a matter of public knowledge.

See "Proposal for Reporter Shield Law," in my Senate Live - May 18, 2006 post, for links to previous introductions of press shield legislation and a bit of commentary.

April 17

A couple of cloture motions were filed yesterday, on the matter of the Highway Corrections bill. IF the Senate follows its rules, the cloture motions ripen tomorrow morning. Below, from a unanimous consent agreement:

That at 12:45 p.m. on Thursday, April 17, 2008, the Senate resume consideration of H.R.1195 ... that with respect to the cloture motions filed on [Boxer] Amdt. No. 4146 ... and H.R. 1195 [waive mandatory quorums]

Hah. The substitute amendment was filed on March 7th.

In other action on the bill yesterday, the Senate rejected DeMint's motion to recommit the bill to committee, on a 78-18 vote. Democrats Bayh, Feingold and McCaskill broke ranks.

Coburn amendments #4538 (to the bill) and #4540 (to Boxer #4539) are pending, in addition to the rather bulky and porked-out substitute amendment.

[establish] a select committee of Congress to investigate the improper insertion of an earmark for Coconut Road into the conference report of the 2005 highway bill after both chambers of Congress had approved identical versions of the conference report. [Public Law 109-59 - H.R.3]

Senator Boxer's amendment #4539 is on the same Coconut Road subject, but calls for an investigation into the matter by the Department of Justice.

What? A Congressional investigation into congressional practice? And a criminal investigation into the political process? I know of no law in the criminal code that prohibits the modification of a bill between the time it is passed and the time it is presented to the president, and Senator Coburn noticed the separation of powers issue implicated by having the DOJ investigate the legislative process.

The "secret change" wasn't an addition of 10 million dollars, it diverted the funds from widening I-75 in Florida, to the Coconut Road interchange in Florida. Somebody thought the change was a good idea; and I seriously doubt the difference in project destination is of any substantial concern of a member of the US Congress.

Senators Clinton, McCain and Obama are co-sponsors of all three of the amendments to investigate the Coconut Road revisions. There seems to be broad general outrage at the circumvention of the expected legislative process.

I call "phony outrage" on the Senate as whole, because the issue has been KNOWN since 2005 and there was correspondence to Congress in August 2007, specifically pointing out the deviation from formal process. There was no call for investigation upon being notified. The public call for investigation is in part a defensive reaction to negative publicity. But unaccountable decision-making at a "layer below" is common. See the mid-term replacement of a dozen US Attorneys, replaceable at will by the president, but the president asserts the replacements weren't made at his direction.

Marty Lederman, at Balkinization, has posted on the subject. The perpetrator of the change is Representative Don Young (R-AK). Read "Laws are like sausages: It is better not to see them being made" for more. From a linked TPM article, "the FBI is already reportedly investigating the earmark as a possible bribe." That's good enough for me - and the circumstantial evidence is pretty damning.

Moving on, Senator Bond's pet amendment (not yet offered) goes to overturning a law that purports to protect consumers who are defrauded by furniture moving companies. Oh yeah (rolling eyes), that's germane to highway funding.


A couple of entries in the Record as Republicans continue their justified but belated complaints about the judicial nomination process. See these entries starting at page S3040 in the Congressional Record. Senator Leahy rebutted the charges at page S3071.

... circuit court vacancies at less than half of what they were when President Clinton left office ... Senate Republicans who refused to consider any nomination to the Sixth Circuit Court of Appeals in the last 3 years of the Clinton administration, leaving open four vacancies ... Judge White was initially nominated 11 years ago, but her nomination was 1 of the more than 60 judicial nominees the Republicans pocket filibustered [held up in the Judiciary Committee chaired by Senator Hatch] ... We have not engaged in a tit-for-tat. ... I hope to be able to complete the restoration of the confirmation process during the next President's administration. We will then have overcome years of partisan rancor.

I won't be bating [to "bate", to hold] my breath.


Astute observation on yesterday's SCOTUS opinion relating to the death penalty, by Justin Levine, writing at Patterico's Pontifications. If medical professionals are forbidden from facilitating state-sponsored executions, by medical ethical rules, then it's not feasible, as a matter of law, to require the facilitation of a medical professional in order for the death penalty to pass constitutional muster.


Commentary from Freddoso and KLO at NRO (and one of the many violence-prone potty-mouth souls posting at Kos -- great entertainment!), on Senator Boxer and a Senate Resolution sponsored by Senators Brownback and Casey:

04/16 09:16 PM - Freddoso (The Pope and the Senator)
04/17 12:46 AM - KLO (Unholy Hold-up)
04/17 09:43 AM - baliyya @ Kos (Praps K-Lo should be drawn and quartered)
04/17 12:41 PM - KLO (re: Unholy Hold)

I'd tell Boxer to vote against the language, rather than accommodate her by changing it. I'm sure Pope Benedict XVI is indifferent as to obtaining unanimity from the Senate. He might indeed appreciate that dissenters have a means to formally and publicly register their disagreement.

Naturally, the Senate will adjust in order to accommodate Boxer, and then fall over itself in self-congratulatory self-adoration for being so considerate and deliberative.

This is the full text of the resolution that contains language that Senator Boxer finds objectionable:

Welcoming Pope Benedict XVI to the United States and recognizing the unique insights his moral and spiritual reflections bring to the world stage.


Mr. BROWNBACK (for himself and Mr. CASEY) submitted the following resolution; which was referred to the Committee on ______________.


Welcoming Pope Benedict XVI to the United States and recognizing the unique insights his moral and spiritual reflections bring to the world stage.

Whereas Pope Benedict XVI will travel to the United States for his first pastoral visit as Pope and will visit Washington, DC, and New York;

Whereas Pope Benedict XVI was elected as the 265th Bishop of Rome on April 19, 2005, succeeding the much beloved Pope John Paul II;

Whereas the visit of Pope Benedict XVI will mark the 9th visit of a pope to the United States, recognizing the historical importance of the Catholic Church in American life, the deep faith and charity of its members, and the responsibilities of the United States in world affairs;

Whereas Pope Benedict XVI has spoken approvingly of the vibrance of religious faith in the United States, a faith nourished by a constitutional commitment to religious liberty that neither attempts to strip our public spaces of religious expression nor denies the ultimate source of our rights and liberties;

Whereas Pope Benedict XVI remains committed to ecumenical dialogue and, during his trip to the United States, will meet with leaders of world religions and representatives of other Christian denominations and will visit a synagogue in New York City, all demonstrating his commitment to sincere dialogue and unity among all members of the human family;

Whereas Pope Benedict XVI has authored 2 encyclical letters inviting the world to meditate on the virtues of love and hope, ‘‘Deus caritas est’’ and ‘‘Spe salvi’’;

Whereas millions of Americans have discovered in Pope Benedict ’s words a renewed faith in the power of hope over despair and love over hate;

Whereas Pope Benedict XVI has been a clear and courageous voice for the voiceless, working tirelessly for the recognition of human dignity and religious freedom across the globe;

Whereas Pope Benedict XVI has spoken out for the weak and vulnerable, witnessing to the value of each and every human life;

Whereas Pope Benedict XVI seeks to advance a ‘‘civilization of love’’ across our world; and

Whereas Catholics in parishes and schools across the Nation, and countless other Americans as well, eagerly await the visit of Pope Benedict XVI to the United States: Now, therefore, be it

Resolved, That the Senate welcomes Pope Benedict XVI on the occasion of his first pastoral visit to the United States and recognizes the unique insights his moral and spiritual reflections bring to the world stage.

April 18

04/17 05:47 PM - KLO (The Pope in the Senate)
04/17 07:07 PM - KLO (How Silly)

This is what was ridiculously cut:

"that neither attempts to strip our public spaces of religious expression nor denies the ultimate source of our rights and liberties"
"Whereas Pope Benedict XVI has spoken out for the weak and vulnerable, witnessing to the value of each and every human life"

Naturally, the Senate adjusted its resolution (S.Res.519) in order to accommodate Boxer.


Also from NRO, Ed Whelan: "The Mystery of the Missing Lawsuits"

In dissent, Justice Ginsburg predicted that these as-applied challenges would “be mounted swiftly, to ward off serious, sometimes irremediable harm, to women whose health would be endangered by the [Act’s] prohibition.” ...

So how many as-applied challenges have been filed over the past year? Zero. ...

Planned Parenthood and its allies also claimed in the mid-1990s that partial-birth abortion was “rare and performed primarily to save the lives or fertility of women bearing severely malformed babies” (in the New York Times’s paraphrase of a typical claim). But in 1997 the New York Times reported that Ron Fitzsimmons, the executive director of the National Coalition of Abortion Providers, admitted that he had “lied through my teeth” in parroting that claim.


Summary of concluding action on the Highway Bill:

Boxer's amendment calling for a DOJ investigation into the legislative process was PASSED on a 64-28 vote. Democrats Byrd, Feingold and McCaskill broke ranks.

Coburn's amendment calling for a Congressional investigation into it's own legislative process was REJECTED on a 49-43 vote. Yep, the will of a majority of senators voting was rejected.

The cloture motion to limit debate on the substitute amendment was conducted a day before it would have ripened under Senate rules, and was PASSED on a 90-2 vote. Senators DeMint and Gregg voted NAY.

The Highway Corrections and fresh pork bill was PASSED on a 88-2 vote. Senators DeMint and Gregg voted NAY. Landrieu and Sanders are the two that managed to make the cloture vote, but bailed out before casting votes on the bill.


No action today or Monday. A motion to proceed to S.1315 - Veterans' Benefits Enhancement Act of 2007, is pending, and a cloture motion has been filed to overcome what the Democrats will call "another Republican filibuster." The cloture vote on the motion to proceed to the Veteran's Benefits bill is scheduled for noon Tuesday, just before the regularly scheduled recess for the weekly [political] policy luncheons.


REPUBLICAN FILIBUSTERS - Senator Durbin speaking:

... what made this [Highway Corrections bill] process historic, and we are researching this, but we believe for the first time in the history of the Senate, the Republicans initiated not one but two filibusters on our effort to pass this technical corrections bill.

We brought this bill to the floor a week ago today, asked that it pass, and then faced a filibuster from the Republicans. That filibuster was broken on Monday, with a 93-to-1 vote, and then a second filibuster had to be initiated by the Republicans before we could finally pass the bill today.

That's a reference to having to file cloture motions on both, the motion to proceed to the bill, and then on limiting debate before voting on either the substitute amendment or the final bill. It's far from unprecedented. Off the top of my head, besides the cloture motions and votes on the Housing Bailout bill less than three weeks ago (all captured in this post), see Senator Dodd's objection to taking up FISA (cloture on the motion to proceed in December 2007) followed by a cloture motion on passage of S.2248 earlier this year.

Or, how about cloture motion on top of cloture motion for judicial confirmations in 2003 and following, when Democrats objected to conducting up or down votes?

I do have to agree however, cloture on a motion to proceed is being used with increasing frequency. Here's a link to a short list prepared two years ago - it wasn't meant to be comprehensive, but those were the only instances that appeared easily. My off-the-cuff estimate is that there have been over two dozen cloture motions to surmount objections to motions to proceed to legislation, since that post.


Whatever Congress is cooking with regard to FISA, it's doing in the backrooms. The Congressional Record for the past week has a total of four mentions of FISA, three of them occurring in the House.


10:18 a.m.: The Senate stands adjourned until 3:00 p.m. Monday.

April 22

I haven't read yesterday's Record, but the UC agreement made last week, to have the cloture vote at noon, on the motion to proceed to S.1315 - Veterans' Benefits Enhancement Act of 2007, wasn't renegotiated.

A cloture motion was filed on a motion to proceed to a separate bill, H.R.2831 - Lilly Ledbetter Fair Pay Act of 2007. That cloture motion ripens tomorrow.

Looks like a do-nothing start of the week. The filing of a cloture motion to proceed to the so-called Fair Pay Act might be taken as a hedge in case cloture is rejected on the Veteran's Benefits Enhancement Act.

Mr. REID. This is an important piece of legislation that we talked about moving to. It deals with fair pay. In the morning we are going to have the morning hour. We are going to have a number of Senators, and a lot of female Senators, come and speak on this issue because this is certainly an issue that is important to women all over America today. We are anxious to get to this. We hope the Republicans will let us proceed to it.

I'd prefer listening to fingernails on a chalkboard.

Google "Equal Pay Day" for a general view of the constituencies for this battle. In the Senate, the major speeches yesterday were by Senators Kennedy and Harkin.


C-SPAN's Capitol News Headlines for April 21, 2008 include an article title "Congress, White House Re-Start Negotiations on Surveillance Bill," but the title links to a story about ex-Senator Bob Kerrey's defense of John McCain's temper.

10:11 - 10:24: Senator McConnell indicates that he expects cloture on the Veteran's Benefits bill to be invoked. A substitute (Burr amendment) will be introduced to correct "one glaring flaw," that being the money proposed to be given to Filipinos living in the Philippines.

Senator Reid reiterates that the GOP has been holding up the bill by objecting to proceed. True, that. He asks UC to move to the bill without the cloture vote, immediately after morning business. Senator McConnell objects, on the basis that the Republicans haven't reviewed the bill or the Burr amendment yet - and yesterday was a no-vote day to boot (so what?). Then a bit of childish commentary over who is less popular; President Bush, the Senate, the GOP or the Democrats.

Senator Reid notes this legislation was reported out of committee 9 months ago, so arguing that Senators won't have had the opportunity to be briefed until today is ludicrous.

Senator McConnell's comeback is that he doubts observers will conclude that the GOP has been obstructing progress on this bill. He bemoans the pace of progress, then brings up last year and claims slow progress there was on account of the Democrats insisting on so many votes relating to Iraq.

Senator Reid notes that Senator Durbin propounded a UC request to proceed to this bill (S.1315) last November 8th, to be met with GOP objection. I've confirmed that -- it is an accurate statement. There was a substantial amount of debate on the GOP objection to taking up S.1315 in November, 2007.

Setting the details aside, I observe that the tenor in the Senate is "testy."

April 23

The motion to limit debate on the motion to proceed to the Veteran's Benefits Bill PASSED on a 94-0 vote. By unanimous consent, the motion to proceed to the Veteran's Benefits bill will be agreed to at about 6:00 p.m. today.

Not much business for today, as the Senate won't come into session until 5:00 p.m. At that time, skipping morning business, the Senate will take up the motion to proceed to the Lilly Ledbetter Employment Discrimination bill. Then, immediately after the Senate agrees to proceed to the Veteran's Benefits bill (6 p.m.), it will conduct the cloture vote to limit debate on the motion to proceed to the Employment Discrimination bill.

This is a link to yesterday's testy exchange between Senators Reid and McConnell.

17:03: Senator Reid indicates that he and Senator McConnell are working on a "schedule" for action, following disposition of the proposed "Fair Pay" and Veteran's Benefits legislation. But he doesn't announce the actions to be handled in the near-term future.

The motion to limit debate on the motion to proceed to H.R.2831 - "Fair Pay," was REJECTED on a 56-42 vote. GOP in the Aye column were Coleman, Collins, Smith, Snowe, Specter and Sununu. Senator Reid voted NAY, but that was in order to be entitled to move for reconsideration of the failed cloture vote.


A continuation of "patent fun" relating to the old "corset is a public use" case: "Underwear Patents" by David Post, writing at Volokh Conspiracy.


Third trial is a charm? 'Liberty City 6' To Be Tried For Third Time - WPLG Miami.

April 24

An hour of debate on S.1315 - Veterans' Benefits Enhancement Act of 2007, with a vote on Burr Amendment No. 4572, followed by a vote on passage of the bill.

After that, as provided in a UC agreement, the Senate will spend about 2 hours of debate on H.R.493, the Genetic Nondiscrimination Act, but under S.Amdt.4573, a substitute amendment by Senators Snowe, Kennedy, and Enzi. After debate, a vote on the bill as amended.

That's apt to wrap up the week. No Supplemental Appropriations, no FISA.

09:50: Senator McConnell spoke on Congressional inaction relating to energy prices. I wasn't paying close attention, and didn't catch the action that he proposed - could have been a general complaint about the Democrats approach to energy policy; discouraging domestic production of oil, taxing fossil fuels, and requiring the deployment of alternative (more expensive) energy sources.

April 25

A well deserved day off, considering the whirlwind pace of progress this week, especially yesterday when the voting was on substance rather on the question "proceed or not?"

Burr Amendment No. 4572 (curtailing benefits to tangentially participating Filipinos), was REJECTED on a 41-56 vote. Senator Bayh joined the Republicans, and Senators Hagel, Lugar, Stevens and Warner were generous with the taxpayer dime.

S.1315 - Veterans' Benefits Enhancement Act of 2007, was PASSED on a 96-1 vote (Senator Vitter cast the sole NAY vote).

H.R. 493, the Genetic Nondiscrimination Act (as S.Amdt.4573, a substitute amendment by Senators Snowe, Kennedy, and Enzi), was PASSED on a 94-0 vote. (Clinton and Gregg voted on the Veteran's Benefits bill, and missed this vote)


Action for Monday will be another cloture vote on a motion to proceed, this one scheduled for 5:30 p.m. and on H.R. 2881 - FAA Reauthorization Act of 2007.

It's 7:00 a.m. on the East Coast, and yesterday's Congressional Record isn't up yet. As usual, I'll recapitulate any parts of it that catch my interest.


H/T HowAppealing, an interesting exchange in Judge Walker's courtroom on the subject of warrantless surveillance is summarized in Bob Egelko's article, "Bush lawyer tangles with judge over wiretaps."

[The administration argues that the civil remedy in FISA] authorizes a court to review the legality of a particular wiretap only when the government has acknowledged that it engaged in electronic surveillance and filed criminal charges based on wiretap evidence.

No invasion of privacy, and no court/civil remedy for aggressive (fishing expedition) snooping, unless and until the snooping results in a criminal charge, AND is presented as evidence. That's a very strained construction of the civil remedy statute in FISA.

I remain puzzled how Congress can see fit to, on the one hand, say the civil remedy should be disposed of in currently pending cases (because court action will expose government secrets and will discourage telecoms from cooperating), but, on the other hand, the civil remedy needs to stay in place for the future.

The EFF makes many of the court filings available at

"Wired" reports on a case where the plaintiff aims to probe another "state secret," that being whether or not he/she is on a government watch list (the Terrorist Screening Database). See "Court: Government Must Reveal Watch-List Status to Constantly Detained Americans" and particularly, the link to Magistrate Judge Schenkier's Memorandum Opinion and Order.

The Order is not "sweeping," and does a good job of rebutting the government's contention of "state secret" as it pertains to the fact of being denied or delayed access to air travel, accompanied by statements that justify the delay or denial on the basis of "being on a list."

The Senate Judiciary Committee moved on S.2533 - State Secrets Protection Act. JURIST has a bit more at "Senate judiciary panel advances bill curbing state secrets privilege."


Marty Lederman on the subject of waterboarding ... The Underdeveloped Jurisprudence of the Forcing/Pouring Distinction."

Many good links and cites in that, and some of the commentary is exceptionally cogent. The bottom line:

ASHCROFT: So no, waterboarding does not violate international law.


Plenty of backroom action on Judicial Confirmations. The Senate Democrats will cherry pick nominations to act on, and continue to stiff other, longer-pending nominations. At "GOP Senators React as Leahy Guts Judges Deal."

I'd not call it "gutting the deal." The only deal was "all efforts to confirm three by Memorial day." IOW, the deal wasn't worth much to begin with, and if ANY three are confirmed, then the deal has been satisfied.

Linked from within (besides links to letters by GOP Senators and Leahy's responses), a blog post titled "Senate Republicans Pick Fight Over Judges."

The McConnell-Reid agreement, which called for movement on three circuit court nominees before Memorial Day now seems to be falling apart. Why? No one can agree on which judges to move.


The Senate is up to its usual finger-pointing schtick. The GOP accusing the Democrats of not making good on a promise to lower the price of gasoline, and (properly) calling them out for a bit of "crying wolf" on GOP abuse of Senate rules to regulate the legislative process.

Mr. HATCH. Mr. President, I have a great deal of appreciation for the distinguished Senator [Stabenow] from Michigan. I know how sincere she is, and I know she feels very deeply about what she has just spoken. But this business of 68 clotures is hitting below the belt.

Time after time, the majority leader has filed bills--many of which have not even gone through committee, have not had 1 day of hearing, some of which have been filed for political purposes just to create tough votes--and then filed cloture immediately.

In the old days--I have been here almost 32 years--nobody did that. Then they call it a filibuster when they are the ones who filed cloture just for the purpose of being able to say there is a filibuster.


One day, within 20 years at the outside, I predict government policy, backed up by the force of law, will be to record the DNA profile of all newborns in a federal database. When it's routine, it's not an invasion of privacy; and when it's routine, there is no need for pretextual arrests in order to obtain a DNA sample.

Mr. LEAHY. Mr. President, I was concerned to learn from the newspapers last week that the Federal Government is getting ready to publish a rule sanctioning the collection of DNA samples from all citizens arrested for Federal crimes ...

This change adds little or no value for law enforcement, while intruding on the privacy rights of people who are, in our system, presumed innocent. It creates an incentive for pretextual arrests and will likely have a disproportionate impact on minorities and the poor. This policy may also make it harder for innocent people to have their DNA expunged from government databases.

April 28

A month-long post. Brief recap: half of the month was spent on the Senate's version of a mortgage industry bailout bill. The Senate passed: an aggregation of 50 bills relating to national parks; massive revisions to an existing highway projects pork bill; veteran's benefits enhancement; and a law that prohibits discrimination based on genetic information. Some hot air was exchanged on the subject of judicial nominations.

The month of April will probably conclude without completing more, as today's plan is to conduct a cloture vote on a motion to proceed, on H.R. 2881 - FAA Reauthorization Act of 2007. Will the GOP insist on 30 hours of post-cloture debate before taking up FAA reauthorization?


"Lawyers Fear Monitoring in Cases on Terrorism" - by Philip Shenon (NYT)

I find the "it's against the law" rationale offered by the government, as it claims it isn't peering into lawyer/suspect conversations, to be weak, in light of it's simultaneous argument of sweeping breadth of Article II powers -- that warrantless surveillance to prevent terrorism isn't illegal.


17:54: Cloture to limit debate on a motion to proceed to H.R.2881 - FAA Reauthorization Act of 2007, was PASSED on a 88-0 vote. (DeMint voted NAY and changed back)

There is no agreement to proceed directly to the bill, "all time to be counted toward post-cloture."

18:30: The Senate will stand adjourned until 10:00 a.m. tomorrow, following remarks by Senator Sessions. The business of the Senate remains the motion to proceed to H.R.2881.

Senator Sessions talks about energy policy and how it impacts the price of energy. He blames OPEC for inflating the price of oil by underproducing. He notes that 85% of oil is owned by nation states - Venezuela, Mexico, ARAMCO, etc. I see an opening for Senator Specter to reintroduce his [stupid] NOPEC proposal (See remarks in Week of June 11, 2007, with links to eight previous NOPEC proposals).

18:51: Speech over, Senate is now out for the day. The C-SPAN2 announcer says the week will likely be consumed by the FAA reauthorization bill.

April 29

Yesterday, the Senate requested that the House of Representatives return H.R. 493, the Genetic Nondiscrimination Act, to the Senate. No explanation.


At NRO, Byron York writes: "Will Ted Kennedy Apologize to Hans von Spakovsky?" I think the GOP prefers to keep the FEC in a state of suspended animation, because rulings from the FEC relating to Senator McCain's use of public financing will be fodder against his campaign.


10:15: Morning rant of Senator Durbin is on energy and the oil industry. He says their profits are too high, and not properly reinvested into alternative energy. He's using a dishonest comparison based on year to year percentage increase in sales and profit, without comparing the breakout of cash flow (e.g., costs) and balance sheet between years.

He's bemoaning the losses being absorbed by airlines. The reverse argument could have been made in another period of history, when oil companies were absorbing losses and airlines were turning profits.


"Clinton: $2.3B in earmarks" - By Manu Raju and Kevin Bogardus (The Hill)

A miniature Mary Landrieu in the making?


H/T HowAppealing, a significant petition for certiorari relating to the appointment of judges to the Board of Patent Appeals and Interferences; arguing that the Director of the Patent Office cannot, under the constitution, exercise the appointment power granted by The Intellectual Property and Communications Reform Act of 1999.

I think SCOTUS will deny certiorari.


A humorous exchange in the "laws for thee but not for me" department ...

Press Briefing by Dana Perino - April 23, 2008

Q Thank you, Dana. Two questions. The AP in Kuwait quotes Secretary of State Rice as saying, "The United States is not going to deal with Hamas. And we had certainly told President Carter that we did not think meeting with Hamas was going to help." And my question: Since the result of this telling was that Mr. Carter proceeded directly to violate this U.S. policy and meet with these terrorists, what is President Bush prepared to do to put an end to this one-man defiance of our policy which so gratified the terrorists?

MS. PERINO: Well, former President Carter is a private citizen, and he made a decision to not comply with what the State Department asked him to do. What I think the President would focus on is, if you go back to what reportedly Hamas said to former President Carter, that they were willing to take these steps for peace, that the very next day, that they went ahead and murdered many people at the Gaza crossing. And I think actions speak louder than words, and we remain very concerned about the situation. That's why Secretary Rice was in the region.

Q If the President, as our nation's chief law enforcer, fails to order Mr. Carter's passport revoked, how many more people like Carter may want to plot U.S. policy in this regard, do you imagine?

MS. PERINO: I don't know, you'll have to take a national survey.


Press Briefing by Dana Perino - April 28, 2008

Q Thank you, Dana. Two questions. First, does the President believe that Congress, as well as the case of Haig versus Agee, have or have not granted the right to revoke passports? And if so, why hasn't Jimmy Carter's passport been revoked as requested by House Deputy Minority Whip Sue Myrick?

MS. PERINO: I think we went over this last week. I don't have anything else to add.

Q "Human Events" reports that when John Gizzi asked you about any possible prosecution of Mr. Carter under the Logan Act, you referred the question to the State Department. They referred this question to the Justice Department, which referred it back to the State Department. And my question: What do you believe these evasions tell the world about the Bush administration compared to former President Carter?

MS. PERINO: Let's just put it this way: No one is suggesting revoking President Carter's passport, period.

Q Why not?

MS. PERINO: Period.


Press Conference by the President - April 29, 2008

Q Do you feel your foreign policy in the Middle East has been undermined by Jimmy Carter's meeting with Hamas leaders? What harm does it do for him to have met with Hamas leaders? ...

And anybody can talk to who they want, but I just want the people to understand that the problem is Hamas.

----- 19:00 -----

Senator Coburn is objecting to UC requests to move a number of health-related bills. Senator Reid can overcome the objections with cloture motions. Will he try?

Senator Coburn's objections depend on the bill - with regard to breast cancer funding, he objects on the grounds that Congress is not competent to render science. With regard to a Medicaid-related bill, he objects on financial grounds; and offers to propound an administration/GOP backed counterproposal in two weeks.

Senator Cantwell chimes in, using a gender-based argument, that women's health issues aren't funded in proper proportion to men's health issues. She bases her action on "we have to respond to our constituencies." And respond she will, even when she's incompetent (and I don't mean that in a derogatory way, I'm incompetent to render medical diagnoses), because re-election is driven by "buying" votes.

19:33: Senator Menendez shutting down the Senate, first requesting a conference with the House on some bill (H.R.4040 - Consumer Product Safety Modernization Act), then referring a different bill to a committee (S.2902 - Independent Office of Advocacy and Small Business Regulatory Reform Act of 2008), passing S.Res.515, S.Res.533, & etc.

The Senate is scheduled to open tomorrow at 9:30, to resume consideration of FAA Reauthorization.

April 30

Senator REID ... I may be a few cents wrong in my illustration, but [the chief executive officers of the major airlines in our country] said: We can't compete. We pay $1.20 for a gallon of aviation fuel. In Europe they pay 70 cents. You cannot compete because the dollar has become so low in value around the world.

Probably prices per pound of jetfuel, not gallon, and if that stated difference is approximately true, it is on account of government action ... perhaps on BOTH sides of the Atlantic. Something to look up. He's right about inflation. If it was being measured the same way today, as it was in the Ford and Carter eras, we'd be talking about similar levels of misery index that were in play in the 1970's and 1980's.

Whose job is it to coin money and regulate the value thereof? Congress's.

What's up with Senator Reid bemoaning the "cost of aircraft fuel" in the US? The Democrats propose to increase the cost of fuel used in aircraft! They propose a new 35.9 cents per gallon excise tax on aviation-grade kerosene, a 14.3 cent per gallon surtax (extra tax) for fuel used in aircraft under "fractional ownership" (multiple owners), and maintaining the 4.3 cents per gallon "retail use" tax, for fuel used in aviation.

Senator Reid roughly outlined the legislative projects that are on deck:

  • the farm bill that is completed, basically, I understand. We are going to have to go to that soon because it expires the end of this week.
  • the Consumer Products Safety Conference. That should be completed hopefully by the end of next week.
  • the budget, our budget that we have to complete. Fortunately, on that, we have a statutory time to work toward its conclusion.
  • Whether we want it, there is going to have to be a discussion about fuel prices, what is going on. That is the No. 1 issue facing America today. It is more important now than the housing market [fickle, fickle]
  • the House is going to pass, next week, the supplemental appropriations bill dealing with the funding of the wars in Iraq and Afghanistan.

And check this tid-bit on obstructionism ...

... we had to file cloture on [the FAA Reauthorization] bill. I told my leadership team I met with this morning, we cannot blame that one on the Republicans because the fact is the substitute coming from the Finance Committee and the Commerce Committee had not been completed until 10 o'clock last night. So realistically we couldn't expect Republicans to start legislating on that before they had the piece of legislation themselves. But they have had it now since last night.

Using Senator Reid's own method of measuring "gouging" by an industry, the airline industry, as a whole, has seen it's profits SKYROCKET. Where's the investigation?

Senator ROCKEFELLER ... Domestic airlines earned an estimated net profit of roughly $3.8 billion last year, more than twice the $1.7 billion net profits they achieved in 2006.

Not that I blame politicians for taking advantage of voter gullibility. I think politicians (and "elites" in general) cultivate gullibility and dependence.


FAA Reauthorization is, as Senator Reid indicated, in the form of a substitute amendment, Amendment No. 4585.

09:40: Durbin S.Amdt.4587 is made pending. The text will be in today's Congressional Record, published tomorrow.


I found this testimony to be the most interesting. I don't find the argument or analysis persuasive, in that it presents false dichotomies and some historical inaccuracies. At the same time, I believe this view represents the operative reality of the day - parts of government policy, as applied against its citizens, are held in secret.

Rivkin Testimony on Secret Law - April 30, 2008


WH Policy Statement on S.2881.

"The High Cost of Aviation Fuel" - Jeremy Cox: By golly, the big airlines were paying about a buck a gallon for Jet-A. It appears that taxing airline fuel is a relatively new phenomenon, both in the US and in the EU.

[European] Airlines warn of fuel tax meltdown - Feb 2005

----- 18:00 -----

Senator Craig announces that he won't object to a two week extension of the farm bill, based on an understanding that the conference committee work is done, and that the WH has signed-off on the legislation. That signals the approximate timeframe for final handling of that bill, for the 110th Congress.

18:38: Senator Reid files a fresh substitute amendment (in effect, introducing an entirely new bill) and "fills the amendment tree" on the FAA reauthorization. In answer to Senator Hutchison, indicates that he is preserving the bill in a condition where it does NOT contain the pension guarantee provisions that the GOP objects to. He also says he has no objection to taking up the Bunning amendment, or others that are tax related.

Senator McConnell does not appreciate the parliamentary maneuver, as it gives the majority leader the parliamentary power to reject amendments -- and he says that obtaining cloture is at risk, unless amendments insisted on by the GOP are permitted.

Senator Hutchison echos the disappointment that the open amendment process has been shut down. She says that the base bill (the substitute) is LOADED with extraneous non-FAA, non-transportation matters that aren't agreeable to the committee leaders and should be amendable (typically by offering an amendment to strike or gut).

Senator Reid says he has no objection to amendments that address measures that are in the bill. If there is an amendment to strike, he says he'll not object to having it brought up, debated, and voted.

Senator McConnell reiterates that he is not in agreement with the parliamentary process. Senator Rockefeller indicates that Senator Hutchison previously stated that the bill would pass if the pension material was removed (it has been), and amendment was allowed to strike the tax measures. He urges her to offer the amendment, and that she may be pleased with the response.

Senator Baucus is disappointed that the pension material (Durbin amendment) was struck, because the effect of that is to favor certain air carriers. Looks as though both sides are hyped up, "doing nothing" (Senator Baucus's words).

Senator Hutchison finds the "amendment tree filled" situation unacceptable, but doesn't offer an amendment to strip the railway, subway and highway fund provisions from the FAA bill.

Senator Rockefeller notices there has been little debate over the condition of the airline support system, e.g., air traffic control; and that objection and debate has been on unrelated matters. He's frustrated that there hasn't been any debate on aviation; but has instead been over small pieces of turf within the larger bill.

19:13: Senator Grassley chimes in -- also upset with the fresh substitute and "fill the tree" processes -- and lays blame at Reid and Rockefeller for the exercise of pure political power to get around the Durbin amendment. "That move breaches the deal," a reference, I think, to agreements relating to moving various proposals in the vehicle of FAA Reauthorization to voted and final resolutions.

Senator Grassley says the move jeopardizes future cooperation on unrelated legislation. That threat of non-cooperation, IMO, is just hot air.