Coming Distractions-- Who Gets To Name The Next Supreme Court Justice?

To say that Judge Anthony Kennedy's resignation is a blow to the future of progressivism in the US for the next 20 years is to put it mildly. Because of the amount of laws and policies that end up being ruled on and over-ruled by SCOTUS, the next choice is likely to bend the court much further right than the more moderate on social issues Kennedy has allowed.

   With less than three months to decide who will have a majority of or retain the majority vote in the Senate and the House for the remainder of Trump's first (and hopefully only) term is anybody's guess. Of course it is in the interest of conservatives to name Kennedy's successor sooner than later and you will not need to be Nostradamus to guess how Republicans will be playing this. However, given the rulings handed down just this month, it is not in the interest of progressives to let that happen easily. But, since a super-majority is not required to approve a nomination nor to knock down a filibuster, it would seem that Republicans have all they need to do their worst.

   Aha! That is until you consider the Republicans who are retiring in January (Shout out to Jeff Flake and Bob Corker) who could exact revenge on a President with whom they have parted ways or an ailing John McCain who may not be up for a vote on a nominee. This would mean that an embattled Democrat like  Joe Manchin, Jon Tester, or Heidi Heitkamp would have to be pulled into the fracas and arm-twisted to go along with the Republicans. So it will be a drama to the end to see how cards are played and who ultimately wins or gets a stay of execution.

   Then it all gets real when, at best, the Democrats win the Senate and still have to negotiate with Trump for the Kennedy replacement. Or the President lives without the nominee knowing he has a deadlocked SCOTUS for the next two years and runs for re-election on the theme that Democrats are obstructionists. Or, the Republicans use the obstructionist angle now to attempt to win Senate seats outright and then name anybody that Trump or they desire.

   All this points to a challenging scenario wherein the blue line has to hold and the Democrats would need to run the table in November and again in 2020. This also points to a lot of dollars being spent trying to win the electorate over to the narrative each side will be promoting. Let the wedge issue framing games begin.  Note to Liberal SCOTUS members, please stay healthy.

Addendum: Over the weekend Senator Susan Collins said that an opponent of Roe v. Wade would be a deal breaker for her. Sen. Lisa Murkowski may also be in that camp. So there are a number of ways this could go past November.
1) Democrats hold, Murkowski and Collins join to block a nomination.
2) McCain, Flake, Corker  abstain from voting and nomination fails. Even if an embattled Democrat crosses over, the nomination fails.
3) Some combination of 1 and 2, the nomination fails.
4) The Senate leaves the SCOTUS with 8 justices through the lame duck session and Trump has to negotiate a moderate choice come January--if the Senate numbers hold or go slightly bluer.

Senate Nixes CIA Waterboarding, Bush Likely to Veto

The Senate voted 51 to 45 to prohibit the CIA from waterboarding and seven other "enhanced" interrogation techniques and using only the 19 methods of interrogation in the Army field manual. President Bush's spokeswoman Dana Perino said, "The president will veto that bill."

From Breitbart

The Senate voted Wednesdy to prohibit the CIA from using waterboarding and other harsh interrogation methods on terror suspects despite President Bush's threat to veto any measure that limits the agency's interrogation techniques.

The prohibition was contained in a bill authorizing intelligence activities for the current year. The bill would restrict the CIA to the 19 interrogation techniques outlined in the Army field manual. That manual prohibits waterboarding, a method that makes an interrogation subject feel he is drowning. The bill passed on a 51-45 vote.

The House had approved the measure in December, so Wednesday's Senate vote set up a confrontation with the White House, where Bush has promised to veto any bill that restricts CIA questioning.

Senate Caves in On Telecom Immunity

Despite the efforts of Senators Chris Dodd, Pat Leahy, and Russ Feingold, the Senate has given immunity to the telecoms as prescribed by George Bush in defeating the amendment proposed by Dodd and Feingold. Fortunately the House does not have the same provision in their bill, so it ain't over.

The Washington Post reports:

Senate voted today to preserve retroactive immunity from lawsuits for
telecommunications companies that cooperated with a government eavesdropping
program, decisively rejecting an amendment that would have stripped the
provision from a bill to modernize an electronic surveillance law.

Senators voted 67 to 31 to shelve the amendment offered by Sens. Christopher J. Dodd (D-Conn.) and Russell Feingold (D-Wis.). A filibuster-proof 60 votes had been
needed for the amendment to move forward.

The vote represented a victory for the Bush administration and a number
of telecommunications companies -- including AT&T and Sprint Nextel -- that
face dozens of lawsuits from customers seeking billions of dollars in damages.

Obama and Clinton to Vote "No" On FISA Cloture

Leaving the door open to disallow immunity for Telecoms who gave up phone records to the Federal government without a search warrant, Senators Clinton anfd Obama will return to D.C. to vote "nay" on cloture.

The rest is from About.Com

The Senate has scheduled a cloture vote Monday afternoon at 4.30 EST over FISA (Foreign Intelligence Surveillance Act) legislation that would provide immunity for telecom firms. This current impasse highlights the age-old tension between individual liberty and government surveillance.

FISA was enacted almost 30 years ago in reaction to government abuses of electronic surveillance for national security purposes, and most American voters (63%) still believe that the government should have to get a warrant before tapping conversations of US citizens. Moreover, about 6-in-10 "reject immunity for phone companies that may have violated the law by selling customers’ private information to the government, preferring to let courts decide the outcome of any cases." (pdf / tip).

The three Democrats who serve on both Senate Judiciary and Intelligence Committees -- Russ Feingold (WI), Dianne Feinstein (CA) and Sheldon Whitehouse (RI) -- voted Friday on the losing side of a test that foreshadows Monday's filibuster vote.

Senate Move Ahead on FISA Bill With Immunity to Telecoms

From Reuters

President George W. Bush's demand for immunity for telephone companies that participated in his warrantless domestic spying program won an initial victory on Monday in the U.S. Senate.

On a vote of 76-10, far more than the 60 needed, the Democratic-led Senate cleared a procedural hurdle and began considering a bill to increase congressional and judicial oversight of electronic surveillance of suspected terrorists.

It includes a provision to grant retroactive immunity to any telecommunications company that took part in Bush's spying program -- surveillance without court warrants of e-mails and telephone calls of people in the United States -- begun shortly after the September 11 attacks.

Nearly 40 lawsuits have been filed accusing AT&T, Verizon and Sprint Nextel Corp. of violating U.S. privacy rights.

Backers of immunity, who include some Democrats as well many of Bush's fellow Republicans, contend companies should be thanked, not punished, for helping defend the United States.

But civil liberties advocates and a number of Democratic lawmakers argue the courts should determine if any company violated privacy rights of law-abiding Americans.

Sen. Craig: Flip-Flopper

CNN reports that Idaho Senator Larry Craig is not resigning after all. Now where are those flip-flops...

Sen. Larry Craig on Thursday said he was not resigning from the Senate despite a Minnesota judge denying his request to withdraw his guilty plea stemming from his arrest in a sex sting at an airport men's room.

Sen. Larry Craig, R-Idaho, sought to withdraw his guilty plea stemming from a sex sting in an airport restroom.

"I am extremely disappointed with the ruling issued today," Craig said in a statement. "I am innocent of the charges against me. I continue to work with my legal team to explore my additional legal options."

"I will continue to serve Idaho in the United States Senate, and there are several reasons for that," the Republican said.

Hennepin County District Judge Charles Porter found that Craig had entered the guilty plea to to a misdemeanor disorderly conduct charge "accurately, voluntarily and intelligently," and that it was too late to withdraw his admission.

In a sharply worded 27-page order, the judge found that Craig had freely given his plea after extensive discussions with prosecutors and after waiving his right to an attorney.

"The defendant, a career politician with a college education, is of at least above-average intelligence," Porter wrote. "He knew what he was saying, reading and signing." Watch a report on the judge's ruling »

Does the US know best?

A resoultion that was passed in the US senate last week is not meeting with approval of the Iraqi government. From TPM

The Senate resolution, adopted last week, proposed reshaping Iraq according to three sectarian or ethnic territories. It calls for a limited central government with the bulk of power going to the country's Shiite, Sunni or Kurdish regions, envisioning a power-sharing agreement similar to the one that ended the 1990s war in Bosnia. Senator Joseph Biden, a Democratic presidential candidate, was a prime sponsor.
At a news conference earlier, at least nine Iraqi political parties and party blocs _ both Shiite and Sunni _ said the Senate resolution would diminish Iraq's sovereignty and said they would try to pass a law to ban any division of the country.
"This proposal was based on the incorrect reading and unrealistic estimations of Iraq's past, present and future," according to a statement read at a news conference by Izzat al-Shahbandar, a representative of the secular Iraqi National List.

Republicans; You Broke It, You Own It

From Yahoo Senate Majority Leader Harry Reid said Republicans, along with Bush, now own the war.

"Back home they assert their independence, but in Washington they walk in lockstep with the president and continue to support his failed policies," said Reid, D-Nev.


Frustrated by the lack of Republicans willing to break ranks, Democrats this week abandoned attempts to reach a bipartisan compromise on Carl Levin's legislation. Levin had said he would have been willing to turn the nine-month date into a goal for troop withdrawals, rather than a mandated deadline.

The Senate blocked legislation Friday that would have ordered most U.S. troops home from Iraq in nine months, culminating a losing week for Democrats who failed to push through any anti-war proposal.

The vote, 47-47, fell 13 votes short of the 60 needed to cut off debate.

"We're going to continue to lose lives and squander resources while they (the Iraqis) dawdle," said Sen. Carl Levin, D-Mich., who sponsored the bill.

Republicans blocked the measure, contending it would have dire consequences for the region and usurp control of the war from seasoned war generals on the ground there. Last week, Gen. David Petraeus, the top U.S. military commander in Iraq, recommended to Congress and President Bush that some 130,000 troops be kept there through next summer — a slight decrease from the more than 160,000 troops there now.

"It would be a very overt rejection of Gen. Petraeus' leadership," said Sen. Lindsey Graham, R-S.C. The military commanders "have earned the ability to carry on their mission," he said at another point.

"If we leave, we will be back — in Iraq and elsewhere — in many more desperate fights to protect our security and at an even greater cost in American lives and treasure," said Sen. John McCain, R-Ariz., a presidential candidate and the top Republican on the Armed Services Committee.


On Thursday, Republicans successfully pushed through a resolution condemning an advertisement by the liberal activist group MoveOn.org. Displayed in The New York Times, the ad taunted Petraeus as "General Betray Us." The resolution, sponsored by Sen. John Cornyn, R-Texas, passed by a 72-25 vote.

House Republican leader John Boehner, R-Ohio, said the House should consider a similar measure. But when asked if House Speaker Nancy Pelosi, D-Calif., would allow it, spokesman Nadeam Elshami said in an e-mail: "The House is going to devote its full attention to providing health care to children, promoting energy independence to improve America's security, reducing global warming, and responsibly redeploying U.S. forces now in Iraq.

"These are the priorities of the American people," he said.

Recent polls show that American views of the war largely have not changed since Petraeus appeared before congressional committees two days last week.

A poll released this week by the nonpartisan Pew Research Center found that 54 percent of Americans still favor bringing troops home as soon as possible. And despite slight improvements in the public's view of military progress, more said the U.S. will likely fail in Iraq than succeed — by 47 percent to 42 percent — about the same margin as in July.

Senate Kills Habeas Corpus for Guantanamo Detainees

From Reuters

The Senate voted on Wednesday against considering a measure to give Guantanamo detainees and other foreigners the right to challenge their detention in the U.S. courts.

The legislation needed 60 votes to be considered by lawmakers in the Senate, narrowly controlled by Democrats; it received only 56, with 43 voting against the effort to roll back a key element of President George W. Bush's war on terrorism.

The measure would have granted foreign terrorism suspects the right of habeas corpus, Latin for "you have the body," which prevents the government from locking people up without review by a court.

Congress last year eliminated this right for non-U.S. citizens labeled "enemy combatants" by the government. The Bush administration said this was necessary to prevent them from being set free and attacking Americans.

The move affected about 340 suspected al Qaeda and Taliban captives held at the Guantanamo Bay naval base in Cuba. It also affects millions of permanent legal residents of the United States who are not U.S. citizens, said one of the sponsors of the bipartisan measure, Democratic Sen. Patrick Leahy of Vermont.

"Any of these people could be detained forever without the ability to challenge their detention in federal court" under the changes in law Congress made last year, Leahy said on the Senate floor. This was true "even if they (authorities) made a mistake and picked up the wrong person."

A Way Forward in the Senate

From FAIR (Fairness and Accuracy in Reporting) Confusing "can't" and "won't."

Following a pattern set when Congress passed supplemental funding for the Iraq War last May (FAIR Media Advisory, 6/1/07), major media outlets continued to "explain" the politics of the war in incomplete and misleading ways.

The point made by these media outlets again and again is that the Democrats have little power to affect policy in Iraq because it would be difficult to pass legislation over a potential Republican filibuster, and even harder to pass a bill over a presidential veto. This sentiment is also voiced by many Democratic politicians, many of whom consider themselves opponents of the war. But passing a filibuster- or veto-proof bill is not their only option.

As the Washington Post's Shailagh Murray and Dan Balz (9/10/07) put it: "Because of a Senate rule requiring 60 votes to shut off debate and 67 votes to overturn a veto, [Senate Majority Leader Harry] Reid faced an almost impossible challenge. Even if all his troops stood together, he started with just 49 votes."

Newsweek's Howard Fineman declared that the Democrats' powerlessness was built into the constitutional system on NBC's Chris Matthews Show (9/2/07):

Politically, what the president has been trying to do is to keep discipline among the Republicans because as long as he can keep most of the Republicans in the Senate, in the House with him, there's no way to overturn the policy because of the way the Constitution reads.... I hate to keep coming back to the Constitution. Sixty votes to stop a filibuster, 67 to overturn a presidential veto in the Senate.

This sort of analysis was used to explain the Democrats' need to compromise with Republicans, watering down a firm withdrawal date in the hopes of winning bipartisan support. "Senior Democrats now say they are willing to rethink their push to establish a withdrawal deadline of next spring if doing so will attract the 60 Senate votes needed to prevail," reported the New York Times' Carl Hulse (9/5/07). "Democrats would need to lure the 60 senators in order to cut off a likely Republican filibuster."

This approach was endorsed in an Associated Press report (9/11/07) by Matthew Lee:

If Republican support for the war holds, as it might for now, Democrats would have to soften their approach if they want to pass an anti-war proposal. But they remain under substantial pressure by voters and politically influential anti-war groups to settle for nothing less than ordering troop withdrawals or cutting off money for the war-legislation that has little chances of passing.

The problem with all these accounts is that Congress does not have to pass legislation to bring an end to the war in Iraq-it simply has to block passage of any bill that would continue to fund the war. This requires not 67 or 60 Senate votes, or even 51, but just 41-the number of senators needed to maintain a filibuster and prevent a bill from coming up for a vote. In other words, the Democrats have more than enough votes to end the Iraq War-if they choose to do so.

The Democratic leadership may believe-rightly or wrongly-that such a strategy would entail unacceptable political costs. But that's very different from being unable to affect policy. To insist, as many media outlets have, that the Constitution makes it impossible for Congress to stop the war obscures the actual choices facing the nation-by confusing "can't" with "won't."

Craig Stripped

The NY Times Reports:

The political career of Senator Larry Craig of Idaho appeared to be collapsing today as fellow Republicans called for his resignation and party leaders ousted him from his committee leadership posts amid the fallout over his arrest and guilty plea in connection with an incident in an airport restroom.

A statement by the Senate Republican leadership said Mr. Craig “has agreed to comply” with a request to step down as the top Republican on the Veterans Affairs Committee, the Appropriations subcommittee on the Interior and the Energy and Natural Resources subcommittee on public lands and forests.

“This is not a decision we take lightly, but we believe this is in the best interest of the Senate until this situation is resolved by the Ethics Committee,” the statement said. It was issued by Senators Mitch McConnell of Kentucky, the party leader; Trent Lott of Mississippi, the whip; Jon Kyl of Arizona, the conference chairman, and other prominent Republicans.

Mr. Craig will still retain membership on the committees, but he will have no more power than a freshman senator, even though he is nearing the end of his third term and was himself in the party leadership not so long ago.