9:30 A.M.: The committee's junior liberal, Sen. Sheldon Whitehouse (D., R.I.) spends his questioning on Citizens United and corporate liability. It's a fairly facile set of liberal = good, conservative = bad arguments. Kagan won't take the bait in Whitehouse's characterization of the Roberts Court.
9:36 A.M.: Sen. Klobuchar opens her questioning by asking Kagan about Chief Justice Roberts' judges as umpires metaphor. Kagan says its apt in many ways but "has its limits." Judges shouldn't enter a case siding with "a particular team."
"The metaphor might suggest to some people that law is a kind of robotic enterprise. . . that it's easy. . . that everything is clear cut. . . that there's no judgment in the process. . . I do think that that's not right" especially at the Supreme Court level.
"Judges do in many of these cases have to exercise judgment." But it's "law all the way down."
9:54 A.M.: Klobuchar moves into a series of fairly non-ideological questions about procedure and due process, the importance of making decisions that don't put undo burden on prosecutors/courts.
10:03 A.M.: Winding down to the end of the first round, Sen. Ted Kaufman (D., Del.) begins by asking about the difference between White House job and Supreme Court job.
Kaufman moves into anti-trust law.
10:14 A.M.: Back to Citizen's United, but Kaufman promises "new ground." He points out that the unusualness of two rounds of arguments, and of Courts instructing parties to brief for a different question than the one that came to the Court originally.
Kagan: "The worst thing you can say about a judge is that he or she is results-oriented." They are "picking sides."
10:25 A.M.: Kagan says Congress has broad authority under the Commerce Clause to regulate the financial markets. She says "the wisdom of a statute" shouldn't enter a judge's mind. This is a continuation of her answer to Tom Coburn of yesterday, regarding whether a law to mandate what Americans eat would be unconstitutional.
10:33 A.M.: Sen. Al Franken (D., Minn.) begins his questioning, the last of the first round. He starts with mandatory arbitration.
10:46 A.M.: Franken moves on to Citizens United, cites 80 percent public disapproval. Criticizes the manner in which the case was decided.
10:55 A.M.: Kagan endorses Chief Justice Roberts statement that if Court doesn't have duty to decide more, they have duty not to decide more. Franken says Roberts and Scalia abandoned their principles and "legislated from the bench" in Citizens.
11:38 A.M.: Back after a break. Leahy concludes his brief second round and now Sen. Sessions is beginning his follow-ups.
11:41 A.M.: After scoring few points on Harvard military recruiting follow-ups, Sessions moves to the Commerce Clause, which he calls "the last refuge of the big-government scoundrel." Sessions is returning to Coburn's line of questioning about the limits of Congress's Commerce Clause power (can the government tell you how many vegetables you must eat etc.), but he doesn't follow-up hard. He missed a real opportunity here.
11:45 A.M.: After Sessions ends his questions, Leahy continues practice of rebutting Republicans by entering favorable documents into the record.
11:48 A.M.: Senator Hatch begins his round by defending Roberts Court against charges of "conservative activism." He points out that ACLU sided with conservative justices in Citizens United, and that Exxon decision was written by Justice Souter.
11:53 A.M.: They are now talking about United States v. Stevens, a free speech case about the creation of videos depicting extreme cruelty to animals.
11:58 A.M.: Hatch goes back to military recruiting. The question is not who sponsored military recruiters, the question was what they were able to offer on the campus. He points out that the law requires the same access to campus and students for the military as other employers receive. Hatch says the veteran's group put in to sponsor the military in lieu of the office of career services did not have similar resources or access.
Kagan says the veteran's group was an adequate substitute.
12:03 P.M.: Hatch is taking up the topic of the Shannen Coffin piece. Could be interesting.
Hatch: "Did you write that memo?"
Kagan: "With respect, I don't think that's what happened here."
Kagan says "the document is certainly in my hand-writing. I don't know if the document is the product of a conversation I had with them . . ."
Kagan says Clinton had "strong views on this issue" and favored health exceptions. "We tried over the course of the period of time when this statute was being considered. . . to get him the best medical evidence on this subject as possible." "We tried to bring all the conflicting views to his attention."
"What ACOG thought was . . . on the one hand they couldn't think of a circumstance in which this procedure was the absolutely only procedure that could be used in a given case. . . but they could think of circumstances in which it was the medically best procedure . . . with the least risk attached to it."
"We knew that ACOG thought both of these things. . ."
Kagan goes on. Hatch asks again "did you write 'this would be a disaster'?" Kagan says yes, the disaster would be that ACOG didn't express both parts of what it believed.
"In their final statement, that sentence. . . that it was not the only procedure of course remained."
Hatch says "this bothers me a lot," that he know there are plenty of doctors in ACOG who did not believe partial-birth abortion was a necessary procedure. "That bothers me that you intervened in that particular area in that way."
Kagan says there is "no way" she "would have or could have" gotten ACOG to change its medical opinion.
12:27 P.M.: Sen. Feinstein gives Kagan a platform for a lengthy discussion of the Establishment Clause of the First Amendment, and on the question of who has standing to sue in federal courts. Interesting, not particularly ideological.
Feinstein then gives a statement on gender equality, focusing on the courts.
12:31 P.M.: Senator Grassley opens his questioning with private property/eminent domain issues.
Kagan says private property is "a foundation stone of our liberty."
12:38 P.M.: Grassley moves on to Second Amendment.
12:54 P.M.: It's the second round for Darth Specter. He is just as combative as yesterday.
1:09 P.M.: An hour recess.
1:37 P.M.: Phil Klein has a better transcript of the Kagan/Hatch exchange on partial birth abortion.
2:13 P.M.: We're back in session and it's Sen. Jon Kyl's turn. He's talking Gitmo detainee policy. He's asking whether she thinks habeus extends to the prison in Bagram. Kagan says no.
Kagan says she "has no preexisting views" of how she would deal with detainee policy "as a judge." This is a very scholastic distinction, but one made by Kagan repeatedly throughout the hearings. Her advocacy as SG has nothing to do with how she'll view things as a judge.
2:21 P.M.: Kyl bringing up whether there is a federal constitutional right to same-sex marriage. When Cornyn asked Kagan this during her SG hearings, she said no. (I did not know this.)
Kagan saying she provided that answer to ensure Cornyn that she could defend the Defense of Marriage Act as SG.
Kyl wants to know whether she's saying there isn't a constitutional right, or the courts haven't found one yet. It's good, tough questioning. Kagan won't answer directly. She says only that she "understands the state of the law" and could defend that precedent.
Kyl follows up with tough questions on extent of SG contact with White House with respect to positions on cases. Kagan won't talk about specific contact with the White House that may have provided political motivation in particular cases.
2:31 P.M.: Kyl now questioning Kagan to clarify her position on foreign law as precedent. This is the best round of questioning so far, probably.
Now he's asking a question from George Will about the living/dead Constitution distinction. Will suggests, pace Scalia, that Constitution meant to install rights and prevent them from being taken away.
Kagan says Constitution is "meant to endure for the ages" but "it is asked to apply to changing circumstances." "In the course of that application, there is development in Constitutional law."
2:34 P.M.: Kyl picks up the Coburn/Cornyn questions on Commerce Clause. He calls Kagan's opinion overly broad. Isn't saying it's not up to the Courts to look into the wisdom of laws passed under Commerce Clause an abdication of Court's authority? Kagan doesn't give any red meat in her response.
2:38 P.M.: Sen. Graham starting his second round with Plessy v. Ferguson to Brown v. Board arc. Graham wants to know how the Court could reach two different conclusions with no change in the Constitution. How is that consistent with strict-constructionism, he asks.
Kagan says precedent changed, and understanding of the world change. By the time the Court got to Brown, Kagan says, holding Plessy would have actually been inconsistent with a series of intervening rulings in the 60 years between cases. "It's doctrinal support had been completely eroded."
Interesting bait-and-switch, Graham transitions to Roe v. Wade, and how it was changed over time. Graham wants to know if it is fair to consider scientific changes in the notion of fetus viability in reaching abortion decisions.
Graham says, just as it would have beeen wrong not to consider changes between Plessy and Brown, it would be unfair not to consider the evolving science on fetus viability. Graham is at his best in this Matlock mode.
2:48 P.M.: Graham: Would Harvard anti-discrimination policy have applied to Catholic Church since they don't take woman priests?
2:50 P.M.: Graham now getting to the ACOG stuff. He's really good at this honey-not-vinegar line of questioning. If I believed as you sincerely do, he's saying, I'd be pushing for the same thing. "Somebody with your background and view of this issue, you were trying to change this and broaden it."
Kagan: "With respect Senator, it's not true." Kagan says she has no agenda.
Graham: "Now wait a minute, I certainly have an agenda when it comes to abortion." It's okay to have an agenda as an advocate, Graham says. Kagan is cornered here. Her answer -- that she was trying to push Clinton's agenda -- rings falsely.
Graham: "You were pushing the envelope in terms of the left side of the aisle." Just like Roberts, working for Republican administration, pushed it in the other direction.
"Quite frankly, I'm surprised to hear that." Graham says if he were in Kagan's position, he would do anything he could to push the law in his direction.
2:56 P.M.: Graham says "Can you name a single activist judge." Kagan won't. "If I do that, I have a feeling I'll do many things that I'll regret."
Good round of questions.
2:59 P.M.: Sen. Ben Cardin up now. (Random note: Kagan called him Senator Carhart).
3:09 P.M.: Frankly, I missed the end of Cardin and the Graham back-and-forth b/c I had to take a call. Catching back up as Sen. Cornyn starts his second round.
3:26 P.M.: Cornyn asking a series of questions on Harvard military policy. Cornyn has a good point. If it didn't discourage military recruiting, what other purpose could your policy have had but to stigmatize the military. In effect, Cornyn says, you gave the military "separate but equal" facilities. Kagan denies this.
3:54 P.M.: We're back in session. Whitehouse back to questioning. Nothing to see here.
4:08 P.M.: Sen. Coburn (R., Okla.) asks Kagan straight-away: do you believe Miguel Estrada should have been confirmed. After hedging, Kagan says "yes." Coburn: You would have voted for him wouldn't you have?
Kagan. "Yes. I hope I would have anyway. Who knows what it feels like to be one of you guys."
4:13 P.M.: Coburn says there is a "marked change" in the last few decades in liberty. He segues into health-care. That's what the vegetable question was about. "You know where I was going" he tells Kagan.
Coburn says SCOTUS view of Commerce Clause post-1937 is "counter" to Founders, has accompanied our decline of liberty since then.]
4:22 P.M.: Coburn asks whether Congress is abandoning tort law and contract law.
4:25 P.M.: Kagan pledges to Coburn that she will re-read The Federalist Papers.
4:27 P.M.: Coburn is trying once more to ask if Kagan personally believes in a natural right to bear arms. Kagan says she doesn't have a view of what natural rights are independent of the Constitution. "Are there inalienable rights?" Coburn asks. "You shouldn't want me to act on the basis of such a belief," Kagan responds, but only within the law.
4:29 P.M.: Klobuchar argues women, for instance, are freer now than in 1980. Kagan eager to jump on the idea that women are freer now to pursue opportunities than they were 30 years ago. She says women could be made freer still.
4:40 P.M.: Franken's round two. Opens with proposed merger between Comcast and NBC-U.
4:47 P.M.: Franken volunteers to "help" Sen. Graham find a judicial activist. He says Legion, Citizens United represent judicial activism -- failure to rule narrowly, disrespect for precedent.
4:57 P.M.: Franken says Thurgood Marshall was "not some radical activist."
Kagan: "Thurgood Marshall is a hero of American Law and a hero of mine,"
5:00 P.M.: Sen. Sessions, round three.
Sessions: "It's not activism to reverse a bad decision."
5:12 P.M.: Here's video of Sen. Cornyn (R., Texas) above, pressing Kagan on military recruitment.
5:13 P.M.: Sen. Grassley's round three.
The first appearance of "penumbras and emanations." Grassley asks Kagan if she agrees that there are rights "between the lines" of the Constitution.
Kagan says she would not subscribe to the penumbra approach. But she does support the result in Griswold v. Connecticut, where the phrase appears.
5:22 P.M.: Senator Coburn will close out with the last round of questioning. Then Kagan and Leahy will make closing statements, followed by a session in a secured, closed session.
Coburn tries once more on the Commerce Clause.
5:30 P.M.: Sessions offering a closing statement. Sessions says Kagan's actions at Harvard re: military recruitment were "not consistent with the law." He says he is "troubled" by some of Kagan's statements.
9:09 A.M.: Committee chairman Patrick Leahy (D., Vt.) takes his prerogative and begins the questioning. He opens by asking her about the process of the hearings. Will she talk about substance, in accord with her 1995 article, and discuss cases that could come before the Court?
Leahy asks her about recusal.
“I would recuse myself on any case in which…I’ve signed any kind of brief.”
9:24 A.M.: Leahy asks Kagan what seems like a direct question on the Second Amendment in light of Heller and McDonald v. Chicago. Do these cases establish a fundamental right to keep and bear arms?
Kagan says that there is no question that they do — but on the grounds that it was “binding precedent” and entitled to the “respect” thereof. Not an answer on how she would have decided the case, obviously.
9:28 A.M.: Leahy gives Kagan a chance to lay a foundation for addressing the Harvard Law military recruitment question.
“Military recruiters had access to Harvard students every single day I was dean,” Kagan says.
9:33 A.M.: Leahy asks Kagan about a supportive op-ed written by a Marine Corps judge-advocate who had graduated from Elena Kagan’s Harvard Law.
Kagan said it was the only time she had cried during the nomination process.
9:36 A.M.: Sen. Sessions (R., Ala.) begins his questioning with Constitutional change. Kagan says the Constitution doesn’t change, but that “Constitutional law that we live under does develop over time” when applied to new circumstances “the Founders never dreamed of.”
“The question is always, what the law says,” Kagan tells him, not “personal beliefs.”
9:42 A.M.: “Do you agree that you are a legal progressive?”
“Senator, I honestly don’t know what that label means.”
Sessions follows up, asks again.
Kagan replies, “I think people should be allowed to label themselves, and I don’t know what that label means so I guess I’m not going to characterize it one way or another.”
9:46 A.M.: Sesssions gets quickly to Harvard military stuff, Kagan is quick to put the policy on his predecessor, Dean Clark.
9:51 A.M.: Kagan won’t back down on oppositio to DADT, which she calls “unwise and unjust.” She tries to clarify her brief to the Supreme Court, which she says didn’t challenge DADT, but argued that Harvard Law policy was consistent with federal law for military recruitment.
9:55 A.M.: Sessions says Kagan gave military “the runaround” under theory that there was “some loophole in the statute” that meant Harvard didn’t have to follow it.
Kagan tries to defuse one of Sessions’ weapons. Sessions asks her how Supreme Court ruled on her amicus brief re: DADT and recruitment policy. Kagan answers directly. “They rejected it 9-0.”
10:03 A.M.: Sessions says that although he is sure Kagan respects our troops, “your actions helped create a climate that was not healthy for the military.”
“Isn’t it a fact that the policy was not a military policy, but a law passed by the United States Congress?”
Sessions says that Kagan treated military personnel as “second-class.”
Kagan: We never suggested any members of the military should be “criticized in any way” for this. “All that I was trying to do was ensure that Harvard Law School could also comply with its discrimination policy.”
10:08 A.M.: Sessions: “I’m taken aback by the tone of your comments.” “I know what happened.”
10:10 A.M.: Sen. Herb Kohl (D., Wis.) opens with what seems like a softball, asking “why do you want to serve on the Supreme Court.” But Kagan doesn’t have a great answer, a sort of Ted Kennedy moment. Kohl follows up and asks “what are the issues that motivate you.”
Kagan is not taking the bait. She says she is motivated by “safeguarding the rule of law.”
Kohl then asks how Kagan would help the American people as a member of SCOTUS. Kagan, again, is wary. She says judges shouldn’t come with a substantive agenda. She says she will take it “one case at a time.”
Kohl won’t quit. SCOTUS decides which cases to hear, “which cases will motivate you?” Kagan’s answer is purely procedural.
It wouldn’t be crazy to see this and think Herb Kohl trying to sabotage Kagan from the left.
10:21 A.M. Kohl asks her about the “air of vacuity and farce” stuff in the 1995 article about judicial confirmation hearings. Kagan repeats what she told Leahy earlier, that she “got some of the balance wrong.”
Kohl is getting exasperated. He asks Kagan which direction she’ll move the Court. Kagan dodges. Kohl quotes Kagan from her 95 article. (Paraphrasing) ‘It is a fair question to ask a nominee in which direction she will move the Court.’
Kagan says “it might be a fair question…” with a smile. Kohl says “I won’t necessarily get a fair answer.”
Kohl then asks Kagan to name specific justices she would emulate. Kagan won’t. “My, oh my,” Kohl says. “Lets move on.”
10:34 A.M.: A discussion of anti-trust law. Then Kohl asks Kagan about cameras in the Court. She favors them. What happens in the Court is “an incredible sight.”
10:44 A.M: Sen. Orrin Hatch (R., Utah) focusing on First Amendment, Citizens United. Kagan argued for government, the losing side, before the Court, and confirms that she thinks the case was wrongly decided.
10:54 A.M.: Great Hatch quotation when he interrupts a Kagan answer. Hatch: “We have to have a back and forth every once and awhile or this place would be boring as hell.” He then adds that he’s been informed hell is not boring.
10:56 A.M.: Kagan won’t answer whether she personally believes aspects of the Citizens United decision, especially whether restrictions on free speech based on the identity of one party (corporations, and unions) are often designed to restrict the content of that speech.
Kagan says campaign finance laws were “selfless” of Congress, because all empirical evidence suggests union and corporate money protects incumbents.
“Tell that to Blanche Lincoln,” Hatch says. “Lincoln is one of the nicest people around here who had ten million spent against her by the unions, just because they disagreed with her.”
11:11 A.M.: Sen. Diane Feinstein (D., Calif.) opens up with a partial-birth abortion questions.
Moves on to executive authority. What is the president’s ability to detain individuals under the law of armed conflict?
Kagan says the Obama administration has a definition of enemy belligerents under the Authorization of the Use of Military Force and supported by the Hamdi case. S.G. office always argued for detention authority based on statutes.
Feinstein asks whether president has limits on detention when there is no specific statutory authority.
Kagan makes a lawyerly, though useful, distinction. “Zone 1″ where POTUS has authority of Congress to detain. “Zone 2″ where Congress has said nothing. “Zone 3″ where POTUS is acting against Congress. She says instances where president can act “in spite of” Congress are “few and far between” but not non-existent.
Generally, “the president if told by Congress it can’t do something, can’t do something.”
Feinstein: Can POTUS detain U.S. citizens without charges? Does it matter where they were arrested?
Kagan: This is a case that will likely come before the Court, she won’t answer. Cites 4th-Circuit decision (connected with fellow SCOTUS nominee Sydney Thomas I believe).
11:31 A.M.: Feinstein hits Congress’s power to protect environment under Commerce Clause.
Feinstein: can individual citizens prove that they were harmed directly by global warming?
Kagan: A qualified yes.
12:20 P.M.: Senator Kyl brings up Kagan’s apparent comparison of the NRA to the KKK as “bad guy orgs.” Kagan says it is “ludicrous” to compare the two.
Kyl then asks about the Arizona e-verify law, but it’s a most technical and procedural discussion.
12:30 P.M.: Senator Feingold (D., Wis.) launches right into Citizens United decision. He asks whether Court’s decision was “unprecedented.”
Kagan says “it is an unusual action, yes.” Feingold asks whether it was unusual how they arrived at the position. Kagan stalls. “It was unusual wasn’t?” Kagan: “The case as it came to the Court, did not precisely address — did not address — the question” that the Court ultimately decided the case on. This is a little win.
12:40 P.M.: Feingold asks executive authority questions, little red meat here. Turns his attention to the Second Amendment, and Heller (which he supports). Kagan saying all the right things about Second Amendment, describes her policy work in Clinton White House on the issue as common sense and “anti-crime.”
12:51 P.M.: Kagan, “White House experience taught me to respect the other branches of government . . . I don’t think the Courts are all there is in this government.” Courts “police” the area. Congress and Executive should make most of the decisions.
An interesting slip though. Kagan first says “when it comes to policy, I think it should be Courts — excuse me, I think it should be Congress and the president” who decides.
1:05 P.M.: The committee breaks for lunch, and so does your humble blogger.
2:28 P.M.: We’re back in session and its Sen. Chuck Grassley (R., Iowa). Grassley asks how her views on constitutional interpretation will affect her decisions.
Kagan describes herself as “pragmatic in my constitutional interpretation.” Judges should look to text, history, and precedent.
Grassley asks about Kagan’s being “not sympathetic” to pro-gun rights case as clerk to Marshall. Kagan defends herself by saying that the precedent of Heller wasn’t in place. Grassley asks if Heller had existed, would she have been in favor? Kagan says “it would have been an entirely different case.”
Grassley: Is there an individual right to bear arms?
Kagan: I think Heller is the law of the land going forward. Not an expert on Second Amendment, but accept the Court’s analysis “and will apply it, going forward.”
Grassley asks, oddly, whether we have right to bear arms independently of Constitution. Grassley wants to know Kagan’s view of natural right?
Kagan dodges. “The fundamental legal question is whether the Constitution” protects such a right.
Ok, I see where Grassley is going now. He is looking to get Kagan to say the right to bear arms is a fundamental right, by moving the conversation outside the law to philosophy. She won’t.
2:40 P.M.: Grassley now asking questions about the curriculum at Harvard Law. He moves on to the validity of international law in deciding cases. Kagan says judges should use all sources to help them reason through decisions, but that the Constitution is basic.
Grassley: Which foreign countries do you suggest we look to?
Kagan: Look to wherever there are good ideas. The big money quote may be: “There are some cases in which the citation of foreign law, or international law, might be appropriate.”
Grassley asks questions about Kagan’s Oxford thesis. Kagan defuses: I wrote that paper before I’d spent a day in law school. I didn’t know a lot about the law.
Grassley says “if I accept your answer, then it spoils a whole five minutes I have here.” Laughter.
2:57 P.M.: Grassley moves on to Kagan’s admiration of Justice Ahoron Barak, former chief justice of Israel. Barak was an unapologetic activist. Grassley asks if Kagan will look to his philosophy for guidance. Kagan says she won’t. She admires Barak for his role in creating an independent judiciary in Israel. She says it is “no secret” that she is Jewish. “The state of Israel has meant a lot to me and my family.”
3:00 P.M.: Leahy brings in praise for Barak from conservative legal luminaries Justice Antonin Scalia and Judge Richard Posner. He quotes Associate Justice Alito saying it is occasionally proper to look at foreign precedent.
Here Sessions objects to Leahy rebutting GOP questions on behalf of Kagan. Sessions also quickly puts Posner and Scalia in context. They, unlike Kagan, have expressed a difference with Barak’s philosophy. He says that Leahy has misquoted or failed to quote completely.
3:04 P.M.: Darth Specter begins his questioning with snipes at both Leahy and Sessions for interjecting. There are 99 Senators who won’t miss this guy.
3:12 P.M.: Specter’s method is to frame an elaborate question, ask Kagan for a pointed and direct response and then, the second she starts to hedge, cut her off and say he’s moving on to the next question. It seems like he has no dog in this fight and he knows it. His questions are bitter above all else.
3:17 P.M.: Kagan calls Citizens United was “a jolt to the system.”
3:19 P.M.: Look up at the 3:00 P.M. update. Phil Klein at AmSpec has Kagan’s full comments on citation of foreign law.
3:34 P.M.: Sen. Lindsey Graham (R., S.C.) starts by asking Kagan whether the Senate is doing a good job in the hearings. Kagan says, yes.
Kagan: “I’ve been a Democrat all my life.” “My political views are generally progressive.”
Graham asks Kagan whether Miguel Estrada was qualified to sit as an appellate judge (he was appointed by Bush and blocked).
Kagan: “He is qualified to sit as an appellate judge. He is qualified to sit as a Supreme Court justice.”
Graham: “Your stock just went way up with me.”
Then begins a lengthy colloquy on the war on terror and detainee policy. Both agree that this is an “instant replay” of their exchange on this topic during Kagan’s SG confirmation hearings.
3:54 P.M.: Levity.
Graham: “I just asked where you were at on Christmas.”
Kagan: “Like all Jews, I was probably at a Chinese restaurant.”
Leahy: “I could almost see that one coming. Senator Schumer informed me of that earlier.”
Schumer: “No other restaurants are open.”
The discussion moves to discussion Miranda and the public-safety exception. Kagan admits that it is narrow, for things like finding a weapon, securing a crime scene etc. Graham asks if it would be in U.S. best interest to give intelligence community flexibility to get intelligence before Mirandizing.
Kagan: It’s a question that might come before the Court in some guys. . .
Graham: Forget about the Courts, as a patriotic American. . .
Kagan: “I’m reluctant to say how I would think about the question as an average everyday citizen because I might have to think about the question as a judge.”
Graham: Should we apply domestic criminal law to war on terror, unchanged? Is that a good thing? If we just made terror a crime, would we be limiting ourselves?
4:02 P.M.: I missed the exact context, but Graham just said: “Back home, it wouldn’t hurt that the Harvard Law School dean was mad at Lindsey.”
4:03 P.M.: Graham: “Do you believe that this country submitting a suspected terrorist to military commission trial is within our value system? Do you personally feel comfortable with that?”
Kagan: “I do. I wouldn’t be a part of this administration if I didn’t think so.”
4:04 P.M.: On to Senator Schumer (D., N.Y.). He starts off asking Kagan about judicial modesty, and then lets her talk for ten minutes straight w/o interruption. Ha.
4:12 P.M.: Kagan: “Activism does not have a party. . . or a philosophy.”
4:21 P.M.: Schumer asks Kagan whether she thinks Constitutional rights are absolute. Kagan says no w/respect to First Amendment. Subject to reasonable limitations. He segways to Citizens United. He gets no new red meat from Kagan.
4:26 P.M.: Schumer moves on to Kagan’s admiration for Barak. Compares glowing words Kagan wrote about conservative Posner.
4:58 P.M.: What was supposed to be a ten-minute break has run quite a bit longer. The committee is waiting for Elena Kagan to return.
5:02 P.M.: We’re back in session, and Sen. John Cornyn (R., Texas) is asking about Miguel Estrada again. You can tell this still stings Senate Republicans.
He moves into Brown v. Board. Cornyn says you can support Brown on Originalist grounds, that it didn’t change the Constitution, apparently contra Kagan. Quotes Reconstruction-era Senator Charles Sumner against segregation.
But Kagan said she’d never claim that Brown “changed” Constitution. Just reinterpreted it. “It is hard to make the case that school discrimination was thought of in 1868.” 14th Amendment is broad on purpose. “Genius of the Constitution” was its lack of general specificity, which allowed its reinterpretation in light of new circumstances.
On “living Constitution,” Kagan says she doesn’t like the “loosey-goosey” interpretation associated with that phrase. She doesn’t agree with it.
5:16 P.M.: On the military recruitment stuff from this morning. The Senate Republican Judiciary shop sends me this fact check:
CLAIM: “Military recruiting went up” during the time the military was barred from the Career Services Office.
FACTS:Arguments pointing to the number of Harvard Law students who joined the military from the Class of 2005 are specious. On-campus interviewing reaches first- and second-year students considering their employment options a couple years in the future. The Harvard Law Class of 2005 would have been recruited during the time the military enjoyed full access to the Career Services Office, not in the Spring of 2005—a mere three months before graduation—when Kagan blocked military recruiting (and before Harvard was forced to again relent).
Here’s Sessions saying that Kagan’s testimony on her role in the affair is “disconnected” from reality:
5:21 P.M.: Cornyn again covers the ground of Heller and McDonald. Cornyn again asks Kagan if she thinks Second Amendment confers a fundamental individual right for law-abiding Americans to keep and bear arms. Kagan again falls back on stare decisis, won’t answer if she agrees with it.
5:34 P.M.: Sen. Durbin now questioning Kagan. A bit of a curve-ball. He starts in on prison reform, sentencing disparities for crack and cocaine.
5:41 P.M.: Kagan won’t answer whether she thinks sentencing disparities reflect an inequality under the law.
5:42 P.M.: Durbin now moves into questioning on the death penalty. Kagan: the constitutionality is established law and entitled to weight of precedent. She volunteers that she has no moral qualms about the death penalty. She says her position is different than Justice Marshall’s.
Live-blog will go black for a bit. Be back shortly.
12:35 P.M.: Sen. Patrick Leahy (D., Vt.) delivers the opening remarks for day one of the Kagan hearings. He mentions “to provide health-care to all Americans” among the powers granted to Congress by the Commerce Clause. He takes lengthy exception to the Citizen’s United decision.
12:43 P.M.: Sen. Jeff Sessions (R., Ala.) begins his remarks. Sessions says “it’s not a coronation, but a confirmation process.” Among his “serious concerns:” Least real legal experience of any nominee in the last 50 years. “She has barely practiced law. . . .She has never tried a case before a jury. . . .She tried her first appellate case just nine months ago.”
Sessions mentions Kagan’s undergraduate thesis “bemoaning” end of socialism, and master’s thesis supporting judicial activism.
He outlined Kagan’s policy-heavy background at the White House, including her role in the partial birth abortion debate and gun control policy: The gun rights stuff gains poignancy in light of the Supreme Court’s decision:
During her White House years, the nominee was the central figure in the Clinton-Gore effort to restrict gun rights—and, as the dramatic 5-4 decision today in McDonald shows, the personal right of every American to own a gun hangs by a single vote.
Ms. Kagan was also the point person for the Clinton Administration’s efforts to block Congressional restrictions on partial-birth abortions.
Indeed, documents show she was perhaps the key person who convinced President Clinton to change his mind, from supporting to opposing legislation that would have banned that horrible procedure.
He focuses, at length, on Kagan’s anti-military record at Harvard Law. This will be the major theme of Republican questioning:
During her time as Dean of Harvard, Ms. Kagan reversed Harvard’s existing policy and kicked the military out of the recruiting office in violation of federal law. Her actions punished the military and demeaned our soldiers as they were courageously fighting two wars overseas.
As someone who feels the burden of sending such young men and women into harm’s way—and who spent much time drafting and redrafting legislation to ensure military recruiters were treated fairly on campus—I can never take this issue lightly.
Dean Kagan also joined with three other law school deans to write a letter in opposition to Senator Graham’s legislation establishing procedures for determining who was an “enemy combatant” in the War on Terror. She compared this legislation to the “fundamentally lawless” actions of “dictatorships.”
He mentions Kagan’s remarks about the ‘vapidity’ of prior confirmation hearings, and her calls for candor from judicial nominees, presumably to deploy later should Kagan prove less than forthcoming.
12:54 P.M.: Sen. Herb Kohl (D., Wis.) now giving opening remarks. A standard-issue liberal argument that judiciary exists to do more than just “call balls and strikes.”
All opening remarks so far have mentioned Senator Byrd’s passing, and the passing of Justice Ruth Bader Ginsburg’s husband, Marty.
1:00 P.M.: Sen. Orrin Hatch (R., Utah) giving remarks. Hatch is one of the Republicans who is in play to vote for Kagan. He says he never considered lack of judicial experience an “automatic disqualifier,” but only if nominees have extensive experience before the bench.
1:08 P.M.: Sen. Diane Feinstein (D., Calif.) gives her opening remarks. Calls Kagan “eminently confirmable.” She colors Kagan’s lack of federal judicial experience as “refreshing.”
Feinstein says she was “extremely dismayed” by McDonald decision of this morning.
1:20 P.M.: Sen. Chuck Grassley (R., Iowa) says Kagan’s “thin record” demonstrates that she has been a “political lawyer.”
1:25 P.M.: Sen. Russ Feingold (D., Wis.) goes off on Citizen’s United. Understandable — McCain-Feingold and all.
1:32 P.M.: Sen. Jon Kyl (R., Ariz.) delivering opening remarks. He is the first to bring up Kagan’s positions on immigration law.
1:42 P.M.: Darth Specter (D., Pa.) is now giving his opening remarks. Stray note: Kagan has been holding her back perfectly erect and maintaining a look of furrowed-brow attentiveness for over an hour now. She looks like she might crack soon.
1:50 P.M.: Sen. Lindsey Graham (R., S.C.), another Republican who might be in play on Kagan, gives opening remarks. Graham brings up Kagan on military recruiting, but is much more cautious. He calls Kagan’s actions “inappropriate” but that the hearings will bear out “what all that really means.”
Graham’s remarks are the softest so far among Republicans. His repetition of the phrase that “elections have consequences” is perhaps a telegraph of Graham’s intention to defer to the Democratic majority and oppose any attempt to filibuster Kagan.
1:58 P.M.: Here’s Sen. Chuck Schumer (D., N.Y.). He explicitly says that he hopes Kagan will create “moderate majorities on this very immoderate Court.” Schumer says Supreme Court is moving back to an “era of conservative judicial activism.”
2:09 P.M.: Now it’s Sen. John Cornyn (R., Texas), rehearsing the difference between “traditional” and “activist” views of judicial power.
2:18 P.M.: Sen. Dick Durbin (D., Ill.) says “I have two words” for Republicans on the committee pledging allegiance to judicial restraint. “Citizens United.”
“If that isn’t judicial activism, what is?”
2:28 P.M.: Sen. Tom Coburn (R., Okla.) hits the “elections have consequences” note as well.
Coburn says he hopes Kagan will “set a new standard for the Senate” and “really answer questions.”
2:31 P.M.: Sen. Ben Cardin (D., Del.) is reading the preamble of the Constitution. Once he’s through with this introductory remarks, there will be a ten-minute break — thank Providence.
2:40 P.M.: Ten-minute recess. Seven more Senators to give opening remarks. Followed by introductions from Massachusetts senators John Kerry (D.) and Scott Brown (R.). Then, at about 4:00 P.M.., opening remarks from Elena Kagan.
2:58 P.M.: We’re back in session and Sen. Sheldon Whitehouse (D., R.I.) is giving his opening remarks. He is accusing the “conservative wing” of the current Court of throwing aside precedent “at an alarming rate.”
3:03 P.M.: Here’s Senator Klobuchar (D., Minn.). She notes close relationship between Kagan and Associate Justice Antonin Scalia.
3:15 P.M.: Now it’s Sen. Ted Kaufman (D., Del.). Kaufman again makes the case that Kagan’s background outside of courts brings “diversity” to SCOTUS. He “could not disagree more” that Kagan’s lack of judicial experience is a liability.
3:25 P.M.: Last and, well, least is Sen. Al Franken (D., Minn.) the junior man on the committee.
3:35 P.M.: Sens. Scott Brown (R., Mass.) and John Kerry (D., Mass.) now preparing to introduce Kagan.
Sen. Kerry focuses on Kagan’s role as “point” for the White House on a bipartisan tobacco bill — smart move. Something tells me he won’t talk gun control or abortion.
Unlike the liberals on the committee, who have subtly and unsubtly advocated a liberal activism, Kerry focuses on Kagan’s reputation for fairness and impartiality.
3:45 P.M.: Scott Brown rehearsing Kagan’s “impressive legal resume.” Doesn’t Brown’s endorsement seal the deal for Kagan, come what may?
3:51 P.M.: Kagan preparing to speak. She’s being sworn-in.
After thank-yous, Kagan talks about her parents, who “lived the American Dream.”
She speaks of debts owed to John Paul Stevens, Ruth Bader Ginsburg, and Sandra Day O’Connor.
Kagan says the Harvard Law motto about “those wise restraints that make us free” captures her view of the law. Her early emphasis is on equality under the law, “even-handedness” and “impartiality.”
“If confirmed, I will remember and abide by all these lessons. I will listen hard to every party before the court and to each of my colleagues. I will work hard, and I will do my best to consider every case impartially, modestly, with commitment to principle and in accordance with law. That is what I owe to the legacy I share with so many Americans.”
4:05 P.M.: With the conclusion of her remarks, Sen. Leahy recesses the committee until tomorrow 9:00 A.M. See you then!
11:23 A.M.: In his opening remarks at today's BP hearings before the House Committee on Energy and Commerce, Rep. Joe Barton (R., Texas) came out strongly against the $20-billion liability escrow fund created by BP at the government's urging:
"It is a tragedy of the first proportion that a private corporation can be subjected to what I would characterize as a shakedown," said Barton, "in this case a $20 billion shakedown."
11:29 A.M.: Just as BP CEO Tony Hayward began his opening statement, he was interrupted by an oil-covered protestor.
The woman, who was subdued by a number of Capitol Hill police and escorted from the room, could be heard shouting "You need to go to jail!" and "You need to be charged with a crime!"
11:54 A.M.: The White House issued a response to the Barton statement. "What is shameful is that Joe Barton seems to have more concern for big corporations that caused the disaster," than for its victims, the White House said. "Most Americans know that the real tragedy is what men and women of the Gulf coast are going through right now." The statement goes on to say that both parties should "repudiate" Barton's comments.
11:56 A.M.: It looks like the protest was by sponsored by Code Pink.
12:26 P.M.: Rep. Bart Stupak (D., Mich.) just asked Hayward if he expected to be CEO of BP for much longer. Hayward wouldn't answer directly. He said that he was focused on the clean-up.
12:31 P.M.: Hayward is already getting testy in his responses to Rep. Mike Burgess (R., Texas), not more than a half hour into his testimony. Not a wise move.
Burgess asks Hayward a question about his knowledge of what was going on in the Deepwater Horizon well before the explosion. Hayward responded "with all due respect, sir, we drill hundreds of wells around the world." Burgess then says, "Yeah I know that's what's scaring me right now."
12:42 P.M.: Rep. Waxman (D., Whoville) laid into Hayward, accuses Hayward of deflecting responsibility for accident and "stonewalling." Hayward says "I'm not stonewalling, I simply wasn't involved in the decision-making process."
12:50 P.M.: Rep. Dingell asks Hayward about the choice of using something called "single-casing" concrete in the well bore at Deepwater Horizon instead of a "tie-back" method that is supposed to be safer. Hayward admits that the single-casing choice would have saved $7-10 million and some time on drilling. Dingell asks a rash of similar questions about other technical decisions made in the drilling process. Again and again Hayward says that since he wasn't involved in the decision-making he can't answer specifically why the choice were made, and can't recall/doesn't know how much time and money were saved by the shortcuts. Not Hayward's finest moment.
12:56 P.M.: Burgess and Stupak have a heated back and forth. Burgess says MMS and other federal regulators should be in the room since Hayward isn't prepared to answer relevant questions about why certain decisions were made and approved by the government. Stupak says MMS "can't help Hayward answer the questions. He has to answer the questions himself." Burgess says that it is clear Hayward doesn't have the depth of technical knowledge to provide worthwhile testimony on the specifics of the accident. "Any one of us could do his job," Burgess says.
1:00 P.M.: A one-hour recess.
2:23 P.M.: The Committee is back in session, with Rep. Ed Markey (D., Mass.) questioning Hayward on existence of oil plumes in the water column. Hayward won't say they're plumes; he says four parts per million in the water column, only some of it typed to the oil from the BP well.
Republicans, particularly Gulf state lawmakers, are furious at Rep. Joe Barton (R-Texas) and may ask him to cede his job as top Republican on the Energy and Commerce Committee in the wake of his apology to BP Thursday.
"People are calling for his head," said a GOP member of the committee.
Indeed, Rep. Jeff Miller, a Florida Republican, was the first in his party to call for Barton to resign as the ranking Republican on the committee after hearing Barton call the $20 billion cleanup fund a White House “shakedown.”
“I am shocked by Congressman Joe Barton’s reprehensible comments that the government should apologize for the ‘shakedown’ of BP,” Miller said. “BP has caused the greatest ecological and environmental disaster our nation has ever seen.
“I condemn Mr. Barton’s statement,” Miller said. “Mr. Barton’s remarks are out of touch with this tragedy and I feel his comments call into question his judgment and ability to serve in a leadership on the Energy and Commerce Committee. He should step down as Ranking Member of the Committee”
2:36 P.M.: Hayward was just asked (didn't catch by whom) if he considered the $20 billion escrow account as a "slush fund" a la Barton. Hayward says no.
2:42 P.M.: Sen. John Cornyn (R., Texas) has come out in at least partial defense of Barton:
“I think it’s good that there’s going to be some money there,” Cornyn said to a handful of reporters. “But I think the part that Representative Barton is expressing some concern about, that I share the concern, is that this has become a political issue for the president and he’s trying to deal with it by showing how tough he’s being against BP.”
“The president’s kind of gone from commander-in-chief to claims adjuster-in-chief,” Cornyn said. “I just think the federal government finds itself in a crisis situation and finds itself embedding the federal government in what heretofore usually has been resolved by legal contracts and the requirements of the law.”
2:52 P.M.: Hayward confirms that the relief wells are it. There are no other BP efforts to kill the well. Oil will flow at least through August.
3:19 P.M.: Barton, just now: "I think BP is completely responsible. . .If anything I said this morning has been misconstrued. . . I want to apologize for this misconstruction."
3:38 P.M.: Wow, after all the Hayward dodging, Rep Cliff Stearns asks: "Is today Thursday, yes or no?"
Hayward: "today is Thursday"
3:44 P.M.: Rep. Scalise pulls out the first oil-covered pelican pic.
3:54 P.M.: This was just put out by Reps. Boehner (Ohio), Cantor (Va.) and Pence (Ind.):
"The oil spill in the Gulf is this nation’s largest natural disaster and stopping the leak and cleaning up the region is our top priority. Congressman Barton’s statements this morning were wrong. BP itself has acknowledged that responsibility for the economic damages lies with them and has offered an initial pledge of $20 billion dollars for that purpose.
"The families and businesspeople in the Gulf region want leadership, accountability and action from BP and the Administration. It is unacceptable that, 59 days after this crisis began, no solution is forthcoming. Simply put, the American people want all of our resources, time and focus to be directed toward stopping the spill and cleaning up the mess."
3:57 P.M.: Rep. Charles Gonzalez (D., Texas) asks Hayward if he supports the drilling moratorium. Hayward won't say "yes", but says "I believe it is prudent for the industry to take stock of what has happened here before it moves forward."
4:05 P.M.: And Barton follows up with a more formal, full-monty statement. He "retract[s]" his apology to BP:
“I apologize for using the term ‘shakedown’ with regard to yesterday’s actions at the White House in my opening statement this morning, and I retract my apology to BP. As I told my colleagues yesterday and said again this morning, BP should bear the full financial responsibility for the accident on their lease in the Gulf of Mexico. BP should fully compensate those families and businesses that have been hurt by this accident. BP and the federal government need to stop the leak, clean up the damage, and take whatever steps necessary to prevent a similar accident in the future.
“I regret the impact that my statement this morning implied that BP should not pay for the consequences of their decisions and actions in this incident.”
4:10 P.M.: Hayward: "My compensation last year was $6 million." He kind of chokes on the last few words.
4:39 P.M.: Hayward says he still trusts blowout preventer as "ultimate fail-safe" but says design must be looked at in light of spill. Hayward also said that flow rate of functioning well would have been about 25k barrels per day, much slower than leak rate.
4:43 P.M.: The word is that the GOP reacted swiftly to the Barton comments, giving him an ultimatum. And even after his apology, it looks like his position is anything but assured:
House Republican leaders told Rep. Joe Barton that he would be stripped of his ranking member status on a key committee Thursday if he did not immediately apologize for comments earlier in the day accusing President Obama of a “shakedown” of oil giant BP, sources told the Daily Caller.
“He was told, ‘Apologize, immediately. Or you will lose your position, immediately,” a House GOP leadership aide said, describing a meeting between Barton and House Minority Leader John Boehner and House Minority Whip Eric Cantor.
“Now that he has apologized, we’ll see what happens going forward,” the GOP aide said.
5:11 P.M.: Rep. Peter Welch (D., Vt.) sets a Bush Trap for Hayward, asks him if there were any mistakes made that led up the spill. Hayward won't name one.
5:29 P.M.: In closing the hearing, Stupak thanks Hayward for coming "voluntarily," but warns that "members are frustrated because the answers we've heard time and time again are things like 'I wasn't involved in that decision,' 'I don't know,...' I think the evasiveness of your answers...only served to increase the frustration...not just of members but of the American people."
President Obama plans today to announce the nomination of Solicitor General and former Harvard Law School Dean Elena Kagan to replace retiring Justice John Paul Stevens on the Supreme Court.
Kagan, who at 50 would be the youngest Justice on the Court, emerged as a frontrunner to succeed Stevens soon after he announced his retirement. If confirmed, she would become the first justice since William H. Rehnquist in 1972 to advance to the high court without previous judicial experience.
Kagan will have been chosen from among a short list that included federal appellate judges Diane Wood, Sidney Thomas, and Merrick Garland. Garland was considered by many Republicans to be the least liberal of the lot, and thus the most likely to win a speedy confirmation. Though Kagan lacks the legal paper trail of a sitting judge, her views are generally supposed to be leftward of Garland, but rightward of Wood or Thomas.
Kagan clerked for the liberal Justice Thurgood Marshall and worked in the Clinton administration before becoming Dean of Harvard Law.
Obama is set to announce the nomination at 10 a.m. in the East Room of the White House. Updates Follow ↓
Ever since she emerged as a favorite for the nomination, Kagan has faced an attack from the far-left, led by the likes of Glenn Greenwald, on the grounds that she is not a true-blue liberal progressive.
In reacting to the nomination, GWU Law’s liberal Jonathan Turley gives the flavor of these arguments:
President Barack Obama said he wanted to honor the legacy of Associate Justice John Paul Stevens with his nominee. If so, he has chosen to honor it in the breach with a nominee who is likely to dismantle a significant part of Stevens’ legacy. As with Justice Sonia Sotomayor, President Obama has decided to nominate someone who is demonstrably more conservative than the person she is replacing –moving the Court to the right.
But Point of Law’s Ted Frank, for one, thinks this is nonsense:
It is mysterious why the idea of Kagan is getting heat from the left. (E.g., Greenwald @ Salon.) There is no reason to think that Kagan won’t be a reliable vote on the left of the Court, and one begins to suspect that these sort of attacks are to slant the story that Kagan is somehow a “moderate” voice to blunt Republican attacks on living-constitution jurisprudence. Liberals should be thrilled with this pick: it’s someone who’s going to give them a reliable vote for what is likely to be two to three decades. (Walter Dellinger—who would’ve been my first choice on the Democratic side of the aisle—certainly understands this.)
And in a long, adulatory piece in HuffPo, liberal Harvard Law professor Lawrence Lessig, a long-time colleague and friend of Kagan, makes the positive case for Kagan as leftie:
“The Kagan I know is a progressive. But we should be careful about precisely what that term means today. Constitutional law has been affected fundamentally by the work of scholars and judges such as my former boss, Justice Scalia. Their influence has plainly reoriented constitutional law to ask not, “What would be the best answer?” to any particular question, but instead, “What is the answer of fidelity?” Or again, what is the answer that most faithfully applies the law of the different generations of our Framers — the Founders, the Civil War Republicans, and the Progressives at the beginning of the last century. I’m not sure that “liberals” on the Court have always accepted this framing. Certainly Douglas and Holmes didn’t feel themselves so constrained. And I can see how many wonder whether some of the more prominent liberals since the Warren Court have accepted this framing either. But among those who do accept that the charge of a judge is interpretive fidelity, there are progressives and conservatives. Diane Wood’s opinions plainly mark her as a progressive. Justice Thomas is plainly among the conservatives. The Kagan I know is with Wood in her views about what the constitution means. She is with both Wood and Thomas in believing that it is the Framers (and again, every generation of them) whose views, as expressed in the text of the Constitution, a judge should apply.
In making the case for Kagan’s nomination from the left, Lessig focuses on her ability to move arguments and change minds. Far from making the court “more conservative” or flipping a liberal for a liberal, Lessig argues that a Justice Kagan would give progressives their best chance to form majority coalitions for decades to come:
The bottom line calculus for me in this case could not be clearer. Obama’s second Supreme Court appointment will still leave the balance of power in the Supreme Court tilted to the right. What progressives need most now is someone with the right views, and a deep sense of how to fight to get a majority to recognize those views as law. It’s not enough to appoint someone who will cast the right vote. We need someone who will make majorities.
ABC News excerpts statements from key Senators on the Kagan nomination:
HATCH: “I will examine Ms. Kagan’s entire record to understand her judicial philosophy,” says Hatch. “My conclusion will be based on evidence, not blind faith. Her previous confirmation, and my support for her in that position, do not by themselves establish either her qualifications for the Supreme Court or my obligation to support her. I have an open mind and look forward to actively participating in the confirmation process.”
Sen. Jon KYL, the number two Senate Republican and another of Kagan’s supporters for solicitor general says much the same thing.
KYL: “As I made clear when I supported her confirmation as Solicitor General, a temporary political appointment is far different than a lifetime appointment to the Supreme Court.”
Sen. Patrick Leahy, who as Judiciary Committee chairman will lead Kagan’s confirmation process, says he thinks there is time to have her confirmed before the end of the summer. And he applauds her nomination because it will bring “a diversity of experience” – a non-judge.
LEAHY: The Senate has adequate time to thoroughly review Ms. Kagan’s impressive qualifications and academic writings, as well as her court filings and oral arguments while she has served the nation as Solicitor General, and consider her nomination this summer. I will work with Senator Sessions, the Ranking Member of the Senate Judiciary Committee, to schedule her confirmation hearing promptly. The Senate acted responsibly to confirm both Chief Justice Roberts and Justice Sotomayor before the start of the Court’s term in both of those instances. Applying the same standard to this nomination, the Senate should confirm Ms. Kagan before the August recess.
Among the most serious constitutional duties entrusted to the Senate is the confirmation of Supreme Court Justices. Americans are looking to Washington to cast aside the political rancor and partisanship that has fueled so many recent debates. The decisions made at the nation’s highest court affect the daily lives of all Americans. Our constituents deserve a civil and thoughtful debate on this nomination, followed by an up-or-down vote.
The Republican Leader, Sen. Mitch McConnell, says to expect a vigorous debate and promises that Republicans will fully vet Kagan.
MCCONNELL: “The American people expect judges to apply the Constitution and laws of the United States fairly and impartially—as they are written, not how they could have been written but were not. Even though the President who nominates them has personal policy preferences, judges must not be a rubberstamp for any administration. Judges must not walk into court with a preconceived idea of who should win. Their job is to apply the law ‘without respect to persons,’ as the judicial oath states; it is not to pick winners or losers.
“Senate Republicans will have a vigorous debate on the importance of this principle. And we will diligently review the record of Ms. Kagan to ensure that she shares this principle and that she possesses the requisite experience to serve on the Supreme Court.”
Nobody is happier about Elena Kagan’s nomination than Joe Sestak, running in the Pennsylvania Democratic Senate primary against Arlen Specter. That’s because while he was still a Republican, Specter voted against Kagan for Solicitor General, even though conservatives like Tom Coburn (R., Okla.) voted to confirm her.
How does Specter plan to navigate this inconvenient truth in the upcoming confirmation battle? If this statement is any indication, poorly.
“There is no doubt that Elena Kagan has exemplary academic and professional credentials. And she has been a pioneer for women, serving as the country’s first female Solicitor General and as the first woman to be Dean of Harvard Law School. I applaud the President for nominating someone who has a varied and diverse background outside the circuit court of appeals.
“I voted against her for Solicitor General because she wouldn’t answer basic questions about her standards for handling that job. It is a distinctly different position than that of a Supreme Court Justice.
“I have an open mind about her nomination and hope she will address important questions related to her position on matters such as executive power, warrantless wiretapping, a woman’s right to choose, voting rights and congressional power.”
Huh, and here I’d always though that SG and Associate Justice were indistinctly different positions.
In a 1995 law review article, Elena Kagan criticized Supreme Court Justices Stephen Breyer and Ruth Bader Ginsburg for failing to answer questions about specific cases during their confirmation hearings. But she has since changed her mind:
[D]uring a briefing with reporters in the White House, Ron Klain, a top legal adviser to Vice President Joe Biden who played a key role in helping President Obama choose Kagan, said that she no longer holds this opinion.
Klain pointed to Kagan’s testimony during confirmation hearings for her current job as solicitor general, the government’s top lawyer.
“She was asked about it and said that both the passage of time and her perspective as a nominee had given her a new appreciation and respect for the difficulty of being a nominee, and the need to answer questions carefully,” Klain said, prompting laughter from a few reporters.
“You will see before the committee that she walks that line in a very appropriate way. She will be forthcoming with the committee. It will be a robust and engaging conversation about the law, but she will obviously also respect the conventions about how far a nominee should or shouldn’t go in answering about specific legal questions,” Klain said.
During her confirmation hearing on Feb. 10, 2009, Kagan was questioned about her 1995 law review article by Sen. Orrin Hatch, Utah Republican, who restated to Kagan the position she took about the need for answers to specific questions, and expressed concern that this would violate the judicial obligation to impartiality.
“I’m not sure that, sitting here today, I would agree with that statement,” Kagan said, referring to her own opinion from 14 years prior.
“I wrote that when I was in the position of sitting where the staff is now sitting, and feeling a little bit frustrated that I really wasn’t understanding completely what the judicial nominee in front of me meant and what she thought,” Kagan said, referring to her time on Biden’s staff in 1993 when he was chairman of the Senate Judiciary Committee.
The Daily Princetonian has an illuminating article on the young Elena Kagan, Class of ‘81. Under at the tutelage of Sean Wilentz — lefty historian, friend of the Clintons, and notorious Bush-basher — Kagan wrote a thesis called “To the Final Conflict: Socialism in New York City, 1900–1933,” which first raised eyebrows when Kagan was being considered for Souter’s seat last year:
“Americans are more likely to speak of a golden past than of a golden future, of capitalism’s glories than of socialism’s greatness,” she wrote in her thesis. “Conformity overrides dissent; the desire to conserve has overwhelmed the urge to alter. Such a state of affairs cries out for explanation.”
She called the story of the socialist movement’s demise “a sad but also a chastening one for those who, more than half a century after socialism’s decline, still wish to change America … In unity lies their only hope.”
Much of the rest of the article is concerned with friends and colleagues from Kagan’s Princeton days defending her politics “mainstream,” e.g.
“I don’t remember her participating in marching, protesting, things like that,” [one colleague] said. “I would probably describe her back then — her politics — as progressive and thoughtful but well within the mainstream of the … sort of liberal, democratic, progressive tradition, and everything with lower case.”
But there is another revealing glimpse, via an opinion piece Kagan wrote in the wake of the 1980 elections. Kagan avows herself as a liberal, and expresses her wish that the future bring “American disillusionment with conservative programs” and a “more leftist left.”
“I absorbed … liberal principles early,” she said. “More to the point, I have retained them fairly intact to this day.”
In the piece, Kagan also expressed her dissatisfaction with the state of the political left at the time, lamenting the demise of “real Democrats — not the closet Republicans that one sees so often these days” and the success of “anonymous but Moral Majority-backed … avengers of ‘innocent life’ and the B-1 Bomber, these beneficiaries of a general turn to the right and a profound disorganization on the left.”
She hoped that the future would “be marked by American disillusionment with conservative programs and solutions, and that a new, revitalized, perhaps more leftist left will once again come to the fore.”
In a 1995 law review article, Elena Kagan criticized Supreme Court Justices Stephen Breyer and Ruth Bader Ginsburg for failing to answer questions about specific cases during their confirmation hearings. But she has since changed her mind:
[D]uring a briefing with reporters in the White House, Ron Klain, a top legal adviser to Vice President Joe Biden who played a key role in helping President Obama choose Kagan, said that she no longer holds this opinion.
Klain pointed to Kagan’s testimony during confirmation hearings for her current job as solicitor general, the government’s top lawyer.
“She was asked about it and said that both the passage of time and her perspective as a nominee had given her a new appreciation and respect for the difficulty of being a nominee, and the need to answer questions carefully,” Klain said, prompting laughter from a few reporters.
“You will see before the committee that she walks that line in a very appropriate way. She will be forthcoming with the committee. It will be a robust and engaging conversation about the law, but she will obviously also respect the conventions about how far a nominee should or shouldn’t go in answering about specific legal questions,” Klain said.
During her confirmation hearing on Feb. 10, 2009, Kagan was questioned about her 1995 law review article by Sen. Orrin Hatch, Utah Republican, who restated to Kagan the position she took about the need for answers to specific questions, and expressed concern that this would violate the judicial obligation to impartiality.
“I’m not sure that, sitting here today, I would agree with that statement,” Kagan said, referring to her own opinion from 14 years prior.
“I wrote that when I was in the position of sitting where the staff is now sitting, and feeling a little bit frustrated that I really wasn’t understanding completely what the judicial nominee in front of me meant and what she thought,” Kagan said, referring to her time on Biden’s staff in 1993 when he was chairman of the Senate Judiciary Committee.
Authorities tell ABC News that, despite the massive manhunt underway for Faisal Shahzad, the 30-year-old Pakistani/American who has claimed responsibility for the Times Square plot, Shahzad’s passport had not been flagged and he was able to pay cash for a ticket, clear security, and board a flight connecting to Pakistan: [FULL STORY] Updates Follow ↓
Sources tell CBS News that multiple people have been taken into custody for questioning in Pakistan in connection with the Times Square bomb plot.
Authorities are not saying who the potential suspects are or where they are being held, but they say there were raids Monday night and Tuesday morning in different locations. It’s believed between four and eight people are being held, and there are reports that some of them may be related to the suspect arrested overnight in New York.
An intelligence official who was not authorized to speak on the record said two arrests had been made in Karachi in connection with the bombing attempt. One arrested is named Tausif Ahmed, and he is believed to have traveled to the United States recently to meet with Shahzad, according to this official. The official did not have the other’s name. Ahmed was arrested in a busy commercial neighborhood called Gulshan-e-Iqbal.
Pakistani television stations are reporting that as many as five other connected people may have been arrested in the central industrial city of Faisalabad, but those reports are not confirmed.
Shahzad hails from Pabbi, the main town of Nowshera District in the northwest, near Peshawar, according to Interior Minister Rehman Malik.
. . .Shahzad was being held in New York overnight and couldn’t be contacted. A phone number at a listed address for Shahzad in Shelton, Conn., wasn’t in service.
According to records obtained by the Associated Press, Shahzad defaulted on a $200,000 mortgage on a house in Shelton. The property is under foreclosure.
The foreclosure records show Shahzad took out the mortgage on the property in 2004, and he co-owned the home with a woman named Huma Mian. The foreclosure case is pending in Milford Superior Court.
At a press conference today, Attorney General Eric Holder said that Faisal Shahzad was questioned for a number of hours under the “public safety exception” before being Mirandized.
Holder said DOJ intends to charge Shahzad with an act of terrorism, along with various explosives charges.
UPDATE: Prominent Congressional Republicans Rep. Peter King (N.Y.) and Sen. John McCain (Ariz.), have called for delaying the Mirandization of Shahzad.
“Don’t give this guy his Miranda rights until we find out what it’s all about,” McCain said this morning.
“I hope that Holder did discuss this with the intelligence community. If they believe they got enough from him, how much more should they get? Did they Mirandize him? I know he’s an American citizen but still,” King said.
Independent Sen. Joe Lieberman (Conn.) went so far as to suggest revoking citizenship rights from terror suspects:
“I think it’s time for us to look at whether we want to amend that law to apply it to American citizens who choose to become affiliated with foreign terrorist organizations, whether they should not also be deprived automatically of their citizenship, and therefore be deprived of rights that come with that citizenship when they are apprehended and charged with a terrorist act.”
But other prominent conservatives, including Judge Andrew Napolitano and Glenn Beck, have argued that as a naturalized American citizen, Shahzad is entitled to all the protections of the Constitution.
Times Square bombing suspect Faisal Shahzad told interrogators that he received training in bomb making during a recent five-month trip to Pakistan, according to a senior U.S. official familiar with the matter.
The official said Mr. Shahzad received his training in the tribal region of Waziristan bordering the Afghan border. South Waziristan is currently the site of a continuing Pakistani military offensive against Islamic militants affiliated with al Qaeda. The region of North Waziristan is the locus of the Central Intelligence Agency campaign to kill militants with unmanned drone strikes.
The criminalcomplaintagainst Shahzad has been unsealed. Some highlights and questions from , in order:
–Shahzad left the keys to his personal car and his Connecticut home inside the Pathfinder used in the bombing. Presumably because he thought they’d be destroyed.
–Shahzad used a prepaid cell phone to call a fireworks store and numbers in Pakistan in the days after purchasing the Pathfinder.
–Shahzad’s wife and parents both live in Pakistan, so these calls could be to them, of course. But considering he claims to having trained in bomb-making in Waziristan. . .
–About that bomb-training. The fertilizer used in the bomb was non-explosive. The crude firecracker detonators didn’t work. The clocks and wires seemed to have been completely extraneous. Makes you wonder.
–FBI/JTTF agents created a composite sketch of Shahzad from the description of the individual who sold him the Pathfinder. That individual also positively identified Shahzad from a photo array. Authorities were able to track Shahzad down, apparently, through a prepaid cell phone, but the mechanics aren’t explained. Any guesses?
–A search of Shahzad’s garage revealed fertilizer and fireworks.
It now appears that two major security lapses — one outside the control of federal authorities — contributed to allowing Times Square plot suspect Faisal Shahzad to board a plane to Dubai.
First, the F.B.I. surveillance team tracking Shahzad from Connecticut lost track of Shahzad for an undisclosed amount of time before he left for JFK airport. They thus did not know that he was planning to fly abroad until a final passenger list was sent to Customs and Border Protection just before takeoff.
Second, and more maddeningly, Emirates Airline reportedly failed to act on an alert send at midday Monday that there was an important new addition to the no-fly list:
. . .[A]t about 12:30 p.m. on Monday, more certain that Mr. Shahzad was the suspected terrorist, investigators asked the Department of Homeland Security to put him on the no-fly list. Three minutes later, the department sent airlines, including Emirates, an electronic notification that they should check the no-fly list for an update. At about 4:30 p.m., more information was added to the list, including Mr. Shahzad’s passport number, officials said.
Workers at Emirates evidently did not check the list, because at 6:30 p.m., Mr. Shahzad called the airline and booked a flight to Pakistan via Dubai, officials said. At 7:35 p.m., he arrived at the airport, paid cash for his ticket and was given a boarding pass.
Airlines are not required to report cash purchases, a Homeland Security official said. Emirates actually did report Mr. Shahzad’s purchase to the Transportation Security Administration — but only hours later, when he was already in custody, the official said.
Mr. Shahzad had evaded the surveillance effort and bought his ticket seven hours after his name went on the no-fly list.
The massive coordination and informational problems of homeland security, not to mention the perennial potential for human error, will never be entirely eliminated. It is folly to legislate as if they could. But this cash purchase loophole, and the apparent failure of Emirates to act on crucial information in a timely fashion, seem as if they are remediable — and in critical need of remedying.
There appears to be little chance that a bipartisan agreement will be reached before a Senate vote Monday to open debate on Sen. Chris Dodd’s (D., Conn.) financial reform bill, as Republicans attempt to unify their 41-member caucus to block Democratic efforts to move forward alone. [FULL STORY] Updates Follow ↓
For the moment, Republicans have successfully beaten back the Democrat financial regulation overhaul, defeating a cloture motion to begin debate on the partisan bill with 42 votes.
Sen. Bob Corker (R., Tenn.), who has been most active in working with Democrats on the bill, voted no on cloture. So did other Republican question marks, including the Maine Ladies Collins and Snowe, Chuck Grassley (R., Iowa), who voted for Democratic derivatives language in committee, and Scott Brown (R., Mass.).
In somewhat of a surprise move, Sen. Ben Nelson (D., Neb.) joined the Republican filibuster, which means the Democrats will now need two defectors to move ahead.
It remains unclear whether Republicans can hold their opposition together long enough to cut a bipartisan deal, or whether mounting political pressure will lead to one or several defections.
Rumor has it that the Democrats could keep the Senate in session 24/7 and force the GOP to actually hold the floor in order to sustain a filibuster.
Fallout from the passage of a strong new immigration enforcement measure in Arizona may have realigned the legislative priorities of President Obama and the Democrats in Congress, who seem poised to take up immigration reform at the conclusion of debate on the financial regulatory bill.
Both supporters and detractors of the Arizona bill, which requires immigrants to carry registration papers at all times and empowers police to stop and question individuals reasonably suspected of being in the country illegally, agree that federal inaction made the passage of the measure possible.
Arizona is home to an estimated 450,000 illegal immigrants and comprises the most oft-crossed border for illegal entry to the United States.
Hundreds emerged in Phoenix to protest the new law over the weekend, where a group including the Rev. Al Sharpton and Phoenix mayor Phil Gordon promised to challenge the “unconstitutional” law in courts.
At one rally, a “small riot” broke out as police attempted to escort away a supporter of the bill who had come under attack from opponents. A number of protesters reportedly began pelting the supporter and his police escorts with objects.
Meanwhile, in Washington, President Obama to responded the signing of the bill by instructing “members of [his] administration to closely monitor the situation and examine the civil rights and other implications of this legislation.”
ABC News reports that an administration official said this means both the Justice Department and the Department of Homeland Security are exploring federal legal responses to the law, including possible lawsuits.
Passage of the Arizona measure also seemed to spur the Democrats to take up immigration in Washington. Senate Majority Leader Harry Reid (D., Nev.), at the apparent urging of the White House, has elected to pursue immigration reform next on the Senate docket. Reid has given Democratic and Republican leaders on the issue three weeks to reach bipartisan agreement on immigration reform, aides said.
The move to consider immigration before a climate and energy bill prompted Sen. Lindsey Graham (R., S.C.), who has long been working with Democrats on both issues, to accuse Reid of a “cynical political ploy.” In a letter written to Senate leaders on Saturday, Graham threatened to withdraw his support for any climate and energy taxation bill if Reid went forward with immigration first.
“If they try to jam a bill through this year because they’re getting pressure from the Hispanic community, I tell you what: They could blow the last chance we’ll have,” Graham said. Updates Follow ↓
Opponents of the new immigration law in Arizona have come up with a novel bit of defacement/vandalism.They have reportedly smeared refried beans in the shape of Nazi swastikas on the state capitol’s windows.
The three principals in the bipartisan energy bill negotations will reportedly meet following today’s cloture vote on immigration, to discuss moving forward with the bill:
Sen. John Kerry (D-Mass.), Sen. Joe Lieberman (I-Conn.) and Sen. Lindsey Graham (R-S.C.) are planning to meet tonight to try to reset action on the energy bill that they had intended to introduce today until their plan was derailed last week.
Their meeting, scheduled for after the cloture vote on financial regulation reform, will take place despite Senate Majority Leader Harry Reid’s intention to hold debate on an immigration bill before the energy issue comes to the floor – a plan that prompted Graham to say he would no longer be a co-sponsor of the bill, despite months of working on it with Kerry and Lieberman.
Graham’s decision set off a weekend scramble, which included White House Chief of Staff Rahm Emanuel, to keep the energy package on track.
Republican Sen. Charles Grassley (R., Iowa) crossed the aisle today, and voted with all 12 Democrats on the Senate Agriculture Committee to send sweeping new derivatives regulation to the Senate floor, where it will be merged with the Dodd bill as part of the Democrats’ far-ranging effort to reshape Wall Street.
Grassley breaking-of-rank is the latest in a series of signs that Senate Republicans are softening their tone on the Democrats’ financial reform bill, and that Democrats, for their part, seem willing to negotiate.
The change in tone was reflected in remarks by Senate Minority Leader Mitch McConnell (R., Ky.), who said he was “heartened to hear that bipartisan talks have resumed in earnest,” and later told reporters he is “convinced now there is a new element of seriousness attached to” negotiations to iron out differences in the bill.
In a similar vein, Sen. Richard Shelby (R., Ala.), ranking Republican on the Senate Banking Committee, said “I believe we’re going to get us a bipartisan bill,” and intimated that negotiations had moved beyond broad principles and were “down to words and phrases.”
At least one Democratic Senator came out in favor of yielding to Republicans on areas of disagreement in order to move the bill forward.
“At the end of the day…we agree on about 80 percent of the stuff here,” said Sen. Tom Carper (D., Del.) during an appearance on Fox News. “I think what we need to do is focus on the 80 percent on which we agree and set aside the 20 percent for another day.” Updates Follow ↓
Some have speculated that the Senate’s renewed taste for bipartisan talks is driven by a dilemma. On the one hand, both sides want to show voters they are “tough on Wall Street.” On the other, both are competing for the lucrative political beneficence of the financial sector, which gave more heavily to Democrats in 2008, but which is seen as now being up for grabs.
President Obama received over $1 million inflation-adjusted dollars in campaign contributions from Goldman Sachs, but has grown increasingly critical of the industry that helped vault him to the presidency.
Similarly, Sen. Chuck Schumer (D., N.Y.), who has a long and well-documented history of working closely with (and benefiting financially from) the financial industry, is now representing himself as a reformer. Schumer’s about face led New York City mayor Michael Bloomberg, an unapologetic defender of the financial sector on which his city so critically relies for economic growth and tax revenue, to say the Senator had gone “AWOL” on the issue.
Sen. Richard Shelby, the official Republican point-man on financial reform negotiations, says a deal is in sight:
Sen. Richard Shelby (R-Ala.), the ranking member of the Senate Banking Committee, said that while there was no agreement on the financial reform bill, one was nearing.
“We’re getting close to that goal, and we’re going to continue to work with that,” Shelby said during a press conference at the Capitol.
“We’re not there yet, but we’re closer than we’ve ever been,” he added.
The Alabama senator said that it was unclear how much more time was needed to resolve the differences, and only said an agreement was likely “pretty soon.”
Shelby said, though, that robust negotiations had continued throughout the past week despite indications that a letter from all 41 Republicans pledging to filibuster the bill in its current form might have shut off talks between both parties. Senate Minority Leader Mitch McConnell (R-Ky.) had circulated that letter and maintained discipline among GOP senators throughout the week, despite efforts from the Obama administration to pick off votes.
In a statement explaining his yea vote on Lincoln’s derivatives reform language, Sen. Grassley made clear that his support for the final bill should not be assumed:
“My vote for this important reform of the derivatives market doesn’t mean I’ll be able to support the larger financial reform bill on the Senate floor. The derivatives piece is significant, but that larger bill has a number of flaws that need to be resolved before I’d support it. Again, I hope the majority leadership of the Senate allows the kind of debate, negotiation and amendment process needed to make those kinds of changes so that representative government can work as it should.”
The New Republic’s Noam Scheiber has it from a White House official that the Democrats might not be as keen to throw the Republicans bones as they outwardly appear:
Alas, it doesn’t look like the White House is biting just yet. “I think right now, everyone sort of sees it as win-win-win,” says a senior administration official. “Frankly, Rahm’s hearing from friends in the financial industry that he should cut a deal before it goes to the floor–that probably makes him less likely to do that, work this out. Rahm’s like, ‘let’s not work it out.’”
To be sure, Dodd continues to negotiate with Dick Shelby, his Republican counterpart on the Banking Committee, in the belief that he can strike a deal in exchange for only a handful of cosmetic, face-saving concessions. And, given the palpable anxiety on the Republican side, some Senate aides I spoke with think he’ll get it before the bill goes before the full chamber, possibly late this week. But, for the moment, the White House seems happier to make the banks and the GOP squirm. “Probably the way it’s playing out … [we’d] make them vote a bunch of times against [a tough bill], then compromise. You’d still have a strong enough bill, but peel off five to ten votes to get it done.” The idea is to force Republicans to pay a price for their reflexive opposition–“make them actually block it, not just say they’re going to block it”–before you finally throw them a lifeline.
A new Fox News poll indicates that President Obama has taken a significant hit from the passage of the Patient Protection and Affordable Care Act, which remains manifestly unpopular.
The poll shows Obama’s approval rating at 43 percent overall, an all-time low, including just 38 percent approval from independents and 7 percent from Republicans.
The president’s numbers reflect an enduring disapproval of the health-care reform bill he ushered through Congress. By a 54 to 39 percent margin, poll respondents disapprove of that measure — a spread that has barely moved since prior to the bill’s passage. That translates into a 53 percent disapproval rating for Obama on the topic of health-care.
47 percent of respondents believe the Affordable Care Act needs changes before implementation, while 36 percent favor full repeal. Just 12 percent think the bill should go into effect in its current form.
Nearly two-thirds of respondents believe the bill will grow the national debt. 56 percent believe it will increase health-care costs, and 46 percent believe it will reduce quality of care (compared to just 26 percent who believe it will improve care).
Passage of the bill could hurt Obama and other Democrats with independent voters in November. 39 percent of independents say they are less likely to vote for a Congressional candidate who supported the bill while just 18 percent said they’d be more likely. Perhaps just as crucially, a full 49 percent of Democrats said that their representative’s position on health-care reform would not influence their vote.
Obama’s approval on Americans’ key domestic policy priorities — job creation and the economy — remain upside-down, with 54 and 53 percent disapproval respectively. A robust 62 percent of respondents disapprove of Obama’s handling of the deficit.
Obama’s approval ratings remain strongest on Afghanistan and terrorism, where pluralities or bare majorities approve of his policies.
Democratic party officials have reportedly warned their swing-district members that they cannot avoid talking about the health-care bill during the Easter recess:
“You don’t run away from this,” said one top party aide who has advised lawmakers and their staffs in the House about the recess strategy. “We have told them: ‘You need to go talk about it. You need to go out there and go on the offensive on it. You will not be able to turn public opinion immediately, but the key is your constituents understand your rationale for supporting it.’”
But as Reuters reports, it is Republicans who, keen on harnessing voter dissatisfaction with the passage of the health-care bill and the process leading up to it, are maximizing their exposure to constituents, while some Democrats are avoiding public appearances on the subject.
The list of Democrats treading lightly during the break includes Senate Majority Leader Harry Reid, who has no plans to speak on health-care during his trip home to Nevada, where he faces tanking approval numbers and a difficult re-election bid. Neither will Sen. Ben Nelson (D., Neb.), he of the Cornhusker Kickback, hold any public events on the topic of his ever-evolving position on the bill, which seemed annoy constituents both to his left and right.
Rep. Bart Stupak, whose pro-life Democratic coalition was crucial to the bill’s eventual passage, has no plans to speak on his yes-vote, or the dubious executive order it took to achieve it, during his trip home in Michigan.
One exception to the Democratic rule is Oregon liberal Sen. Jeff Merkley, who will hold not one but six town halls throughout the state during recess.
Meanwhile, Republicans are anxious to keep the issue at the forefront of voters minds in the long months until November. Sen. John McCain (Ariz.), facing a primary challenge to his right in the form of J.D. Hayworth, will take a strident message of full repeal to his constituents in Arizona.
Sen. Tom Coburn, a physician and a key leader in the Senate’s opposition to the bill, will hold a series of town halls in his native Oklahoma.
In a memo to members, Rep. Mike Pence urged his House members to follow their lead:
“Use every opportunity to visit with area business leaders, senior living centers, medical professionals, and local press to carry our message to every corner of the country,” he said. “There is simply too much at stake to let up the pressure.”
So much for the afterglow. The president’s post-health care “bounce” is gone, and Americans are increasingly blaming him for high unemployment and a stagnant economy.
A new USA Today/Gallup Poll finds that nearly two in three Americans say health-care reform costs too much, expands government too far, and will worsen deficits, while a plurality believe it will increase premiums and reduce coverage.
Overall, 50 percent of respondents called passage of the Affordable Care Act “a bad thing” while 47 percent called it “a good thing.” Those numbers mirror Obama’s approval/disapproval split of 47/50 — which also marks the first time Obama’s disapproval has climbed that high.
The survey also found a lingering distaste for “process” issues that Democrats tried to play down as the bill neared passage. 53 percent of respondents called Democratic methods “an abuse of power.”
Meanwhile, 50 percent of respondents said Obama doesn’t deserve to be re-elected, an 26 percent say he deserves “a great deal of blame” for the nations economic problems – double the number who said as much last summer.
Republicans on Capitol Hill have been generally positive but wary of President Obama’s announcement that he would move to open parts of the Eastern Seaboard, Gulf of Mexico, and Alaskan coastline to offshore oil drilling.
Sen. James Inhofe (R., Okla.) ranking member of the Senate Committee on Environment and Public Works and bane of leftist environmentalists everywhere, said that while he “appreciate[s] the President’s apparent willingness to consider offshore drilling,” ultimately “Time will tell as to whether Obama is really ready to embrace” the idea.
“It also appears President Obama is caught in a contradiction: the President is, on the one hand, pushing forward with global warming policies to make fossil fuels more expensive, while on the other hand, he’s talking about drilling for more fossil fuels offshore,” Inhofe added. “How does the President square these two policies?”
Likewise, Rep. Mike Pence (R., Ind.) called the plan a “smokescreen” and warned that it “will almost certainly delay any new offshore exploration until at least 2012 and include only a fraction of the offshore resources that the previous Administration included in its plan.”
“Unfortunately, this is yet another feeble attempt to gain votes for the President’s national energy tax bill that is languishing in the Senate,” Pence said.
Sen. Lindsey Graham (R., S.C.) who has shown more willingness to work with Democrats on energy policy, was more optimistic.
“I listened with great interest to President Obama’s speech encouraging the nation to adopt comprehensive policies which allow us to become energy independent,” Graham said in a written statement. “I intend to answer the call by working with my Republican and Democratic Senate colleagues to put our nation on a pathway to energy independence and a cleaner environment.”
“The time has come for our nation to embrace comprehensive, game-changing energy policies which lead to energy independence. The incremental changes we have adopted in the past have simply led to more and more dependence on foreign oil.
Graham called the Obama proposal a “a good first step” but said “there is more that must be done to make this proposal meaningful.”
Sens. Lamar Alexander (R., Tenn.) cautioned Americans to “read the fine print,” and Majority Leader Mitch McConnell (R., Ky.) said that the “proof of the administration’s announcement will be in the implementation.”
On the other side of the aisle, reaction was mixed, rangning from measured support to fierce opposition.
Sen. Jeff Bingaman (D., N.M.), Chair of the Senate Energy and Natural Resources Committe, Sen. Mark Warner (D., Va.), and Sen. Bill Nelson (D., Fla.) all praised the plan in separate releases. But Sen. Frank Lautenberg roundly condemned it, calling it a “Kill, Baby, Kill policy.”
“Drilling off the Virginia coast would endanger many of New Jersey’s beaches and vibrant coastal economies,” stated Lautenberg. “Giving Big Oil more access to our nation’s waters is really a Kill, Baby, Kill policy: it threatens to kill jobs, kill marine life and kill coastal economies that generate billions of dollars. Offshore drilling isn’t the solution to our energy problems, and I will fight this policy and continue to push for 21st century clean energy solutions.”
House Minority Leader John Boehner (R., Ohio) criticized the Obama plan for failing to go far enough:
“It’s long past time for this Administration to stop delaying American energy production off all our shores and start listening to the American people who want an “all of the above” strategy to produce more American energy and create more jobs,” the House GOP leader added. “Republicans are listening to the American people and have proposed a better solution – the American Energy Act – which will lower gas prices, increase American energy production, promote new clean and renewable sources of energy, and encourage greater efficiency and conservation.”
Democrats Sen. Ted Kaufman (Del.) and Barbara Mikulski (Md.) joined Sen. Lautenberg in opposing the plan.
Kaufman:
“While I share the President’s commitment to taking our dependence on foreign oil head-on, I do not believe opening Delaware’s coasts to drilling is the way to meet that goal. It is a simple fact that the United States has only a tiny percentage of world oil reserves – 3 percent – while we consume 25 percent. We cannot achieve meaningful energy independence through our own oil reserves. We can and must focus on building an energy economy that relies on clean, renewable domestic sources.
“Here in Delaware, we are pushing forward on the nation’s first offshore wind project. We believe that our oceans offer the promise of clean, renewable energy that will create jobs, cut our greenhouse gas emissions, and move us toward energy independence.
“My concerns with expanding drilling are not just about the environmental effects – the harm to aquatic life and our water quality. I also worry about the damage that oil spills could do to the tourism that drives the Delaware coastal economy.
“I look forward to working with the President and Senators from around the region to find ways to reduce our dependence on foreign oil without risking our environment and our economy.”
Milkulski:
“We must do what we can to help Americans deal with rising energy costs without opening up our Atlantic coastline to drilling. Offshore drilling brings with it great concerns – from the potential of oil spills to the protection of our defense facilities located along the coast – for our national security. The coastal states that are on the front lines need to have to a say when it comes to decisions that have an impact far beyond one state’s coastline. I will continue to do what I can to protect these coastal areas, and the Chesapeake Bay, for future generations,”said Senator Mikulski.
Sen. Jim Webb (D., Va.) joined his codelegate Mark Warner in supporting the Obama plan:
“Opening up Virginia’s offshore resources to natural gas and oil exploration holds significant promise for boosting needed domestic energy production, while at the same time, bolstering the Commonwealth’s economy,” said Senator Webb. “Support among Virginia’s political leadership for developing the resources 50 miles off of our coast is strong. This policy should be coupled with a fair and equitable formula for profit-sharing between the federal and state government in order to attract well-paying jobs to the Commonwealth and support a range of projects, from clean energy development to transportation infrastructure to coastal restoration.”
While Sen. Ben Cardin (D., Md.) broke with codelegate Barbara Mikulski’s opposition:
“Our nation desperately needs a comprehensive energy policy that will lessen our dependence on foreign oil. I applaud the President for putting forward such a plan that includes renewable sources, nuclear energy, and developing oil and gas resources on existing leases, but I object to expanding off-shore drilling. The oil companies already have over 60 million domestic acres of leased area that could be drilled today, but they sit idle. We need to explore and drill currently held lands before risking permanent damage to some of our nation’s most sensitive environmental areas, including the Chesapeake Bay,” said Senator Cardin, a member of the Senate Environment and Public Works Committee, and chairman of the Water and Wildlife Subcommittee. “Before drilling begins on any new areas, there must be comprehensive environmental and economic studies completed to assess the dangers to affected states. Spills happen with even the most responsible drilling, but spilled oil does not stop at the state border. The entire region must have a say before starting any activity that puts our fisheries, seafood and tourism industries in jeopardy.”
The first time the health-care bill went through the House in November, it passed by a 220-215 margin. Since then, one yes-vote has died, two ‘yeses’ and one ‘no’ have resigned, and the lone Republican ‘yes’ has publicly reversed his stance. All things equal, that would leave House Speaker Nancy Pelosi with a 216-215 margin. That is, until you take into account Bart Stupak, a ‘yes’ the first time around who claims to lead a dozen other pro-life Democrats committed to voting ‘no’ on the Senate bill. Or the umpteen ‘yes’ Democrats in vulnerable seats who have been vacillating. Or the umpteen ‘no’ Democrats who have been doing the same under a steady diet of sticks and carrots from House leadership and the president.
These complications notwithstanding, this is the latest on how these crucial swing votes stand, near as we can tell:
John Adler (D., N.J.)
Vote on First Bill: NAY
District: Obama 52 % / McCain 47%
Status: Freshman, somewhat safe
Latest Statement: “Rep. John Adler (D., N.J.), a freshman who won a GOP-leaning district in 2008, is also undecided, after voting no last fall. He said the Senate bill did a better job containing health costs.”(Wall Street Journal, 3/2/10)
Jason Altmire (D., Penn.)
Vote on First Bill: NAY
District: McCain 55 % / Obama 44%
Status: Mostly safe
Latest Statement: Told Fox News he has an “open mind.”(The Hill, 3/2/10)
* * *
“Congressman Jason Altmire will vote against the latest version of health care reform when the U.S. House votes on the bill this weekend.
Altmire confirmed that he has decided to vote no in a telephone conversation with KDKA political editor Jon Delano.
“I’m deciding it by doing everything I possibly can to hear what they have to say,” he said. “The rallies at my office, the phone calls, emails, and letters that are coming in to Washington and in the district.” (The Corner, 3/19/10)
Mike Arcuri (D., N.Y.)
Vote on First Bill: AYE
District: Obama 50 % / McCain 48%
Status: Somewhat safe
Latest Statement: He doesn’t want to see the bill passed as a “mega bill,” and he believes more success would be had by breaking the bill apart and passing aspects of it incrementally, he said. “There would have to be some dramatic changes in it for me to change my position,” Arcuri said. (Utica Observer-Dispatch, 3/2/10)
* * *
“Hotline reports that Rep. Mike Arcuri (D., N.Y.), a sophomore who had a tough go of it in 2008, will vote nay on Obamacare, both on the House floor and in the Rules Committee. The Rules vote is symbolic, since Democrats outnumber Republicans there two-to-one. But the floor vote could go either way. It is obviously a blow to Pelosi’s chances of hitting 216. But just as often, the fact that a vulnerable junior member votes against the Speaker signals that the Speaker can afford to let him do so.” (NRO, 3./18/10)
Brian Bard (D., Wash.)
Vote on First Bill: NAY
District: Obama 52% / McCain 46%
Status: Retiring
Latest Statement:“I get all these people advocating, calls and letters, saying vote one way or the other,” he said. “I don’t know how they know what’s going to be in it — because I sure don’t.” (Salon, 3/3/10)
John Barrow (D., Ga.)
Vote on First Bill: NAY
District: Obama 54% / McCain 45%
Status:Safe Latest Statement: “I am strongly in favor of reforming the health care system, but I don’t think this bill is going to do it, and therefore I can’t support it. It puts too much of the burden of paying for it on working folks who are already being overcharged, and that’s not fair. It threatens to overwhelm Medicaid in Georgia, and that’s not right. And it barely touches the insurance companies, and that’s not smart. We can do better and I’m ready to start.” (statement, 3/20/10)
John Boccieri (D., Ohio.)
Vote on First Bill: NAY
District: McCain 50% / Obama 48%
Status: Mostly safe
Latest Statement:“The big get for Democrats, however, seems to be Rep. John Boccieri (D-Ohio). The freshman Democrat had been a member of a group of lawmakers who were threatening to abandon the bill over concerns with its language about abortion financing. Hailing from a district that was won by John McCain during the 2008 election, his seat is considered vulnerable in 2010. But a Democratic source in Ohio says the congressman, who was lobbied heavily on the floor by House leadership on Thursday, has told the White House he is a “yes” vote, despite having opposed the bill the first time around.” (HuffPo, 3/19/10)
Allen Boyd (D., Fla.)
Vote on First Bill: NAY
District: McCain 54% / McCain 45%
Status: Safe Seat
Latest Statement:“What changed? One conservative Democrat, Rep. Allen Boyd of Florida, cited the announcements by insurance companies that premiums will shoot up this year.” (NPR, 2/26/10)
* * *
“U.S. Rep. Allen Boyd, who voted against national health care last November, said today he will vote for the new bill when it comes to the House floor.” (Tallahasee.com, 3/19/10)
Anh Cao (R., La.)
Vote on First Bill: AYE
District: Obama 75% / McCain 23%
Status: Vulnerable
Latest Statement:“At this point, I can not support the agenda being pushed, because of the federal funding for abortion. That was one my biggest issues in the original house bill, and once the Stupak amendment was passed… I was able to support the house bill. But the same language is not in the agenda that is being pushed by the President. Unless the abortion language changes, I cannot support the program.” (CNN, 2/25/10)
* * *
“Cao, the only Republican to vote for the health care bill in either the House or Senate, said he would take another look.
“He’s asked if I would restudy the Senate language and that I would approach it with an open mind. And I promised that I would go back and study the Senate language again,” Cao said after meeting with Obama in the Oval Office for about 10 minutes Wednesday.
Cao said he appreciated the president’s sensitive approach in seeking his vote on an issue that many observers say could make or break Obama’s presidency.
“He fully understands where I stand on abortion, and he doesn’t want me to vote against my conscience because he, like me, believes that if we were to vote against our conscience, our moral values, there is really nothing left for us to defend,” Cao said. “I’m glad that the president is very understanding. He really shows his own moral character.”
Chris Carney (D., Penn.)
Vote on First Bill: AYE
District: Obama 54% / McCain 45%
Status: Somewhat Vulnerable
Latest Statement:“As I said publicly, I can’t vote for a bill that will publicly fund abortion.” (Scranton Times-Shamrock, 3/15/10)
Ben Chandler (D., Ky.)
Vote on First Bill: NAY
District: McCain 55% / Obama 43%
Status: Somewhat safe
Latest Statement: The office of Rep. Ben Chandler (D., Ky.) tells Jeffrey Young that the congressman will again vote ‘no.’ (Jeffrey Young, 3/15/10)
Jerry Costello (D., Ill.)
Vote on First Bill: AYE
District: Obama 56% / McCain 43%
Status: Safe Seat
Latest Statement:“As we have said before, weakening the House’s pro-life provisions could change the votes of at least 12 Members who voted yes in November [including Costello].” (GOP Memo, 2/24/10)
Update 03/12/10 12:16 P.M.: “As of today, it looks like the process that will be followed will be that the speaker intends to have us vote on the Senate-passed bill and then a separate bill with corrections to the Senate bill,” he said. “I’m opposed to the Senate bill in its current form.”(Telegraph of Illinois, 3/12/10)
* * *
“But thus far, Costello, an 11-term Democrat from Belleville, is planning to vote ‘no’ on the Senate version of health-care reform if and when that vote takes place, a top aide, David Gillies, confirmed this morning.
Costello was one of the 220 House members who voted for the House version of health-care reform in November. Last week, he was undecided on Senate legislation that might come up for a vote Friday or Saturday.
But Costello decided to oppose the Senate bill because of the cost, what he regards as the insufficient curbs on abortion funding and the state-specific provisions added to win votes in Nebraska,Louisiana and Florida.” (stltoday.com, 3/17/10)
Henry Cuellar (D., Tex.)
Vote on First Bill: AYE
District: Obama 56% / McCain 44%
Status: Safe Seat
Latest Statement:“Meanwhile, Democratic leaders said Thursday they will no longer try to satisfy Rep. Bart Stupak, D-Mich., and 11 or so other members who oppose the Senate bill without tougher language barring abortion funding. They all voted for the House bill.
“I want to make sure that the Henry Hyde amendment that federal funds not being used for abortion is adhered to,” said Rep. Henry Cuellar, D-Texas, who says he’s a Stupak supporter.(IBD, 3/11/10)
Kathy Dahlkemper (D., Penn.)
Vote on First Bill: AYE
District:Obama 49% / McCain 49%
Status: Somewhat Safe
Latest Statement:“Mrs. Dahlkemper’s spokeswoman Marie Francis said Wednesday the congresswoman is opposed to the Senate bill and its abortion language, “period.””(Sharon Herald, 2/25/10)
Pete DeFazio (D., Ore.)
Vote on First Bill: AYE
District:Obama 54% / McCain 43%
Status: Safe
Latest Statement:DeFazio, who voted for the bill last year, complicated things for Democratic leaders. But he indicated he could still change his mind again.
“I’m a no unless they fix this,” he said, referring to what he sees as insufficient Medicare spending in rural areas. (Fox News, 3/19/10)
* * *
Joe Donnelly (D., Ind.)
Vote on First Bill:AYE
District:Obama 54% / McCain 45%
Status: Vulnerable
Latest Statement:“It provides federal funding for abortion-related services, so I can’t cross that line,” Donnelly said, standing just outside the House chamber. (Daily Caller, 3/11/10)
Steve Driehaus (D., Ohio)
Vote on First Bill:AYE
District:Obama 55%/ McCain 44%
Status: Vulnerable
Latest Statement:“Other Democratic representatives who voted yes on the House bill but are a no vote if the Senate language remains are Reps. Joe Donnelly of Indiana, Kathy Dahlkemper of Pennsylvania, Steve Driehaus of Ohio and Marion Berry of Arkansas.” (Foxnews.com 3/10/10)
Brad Ellsworth (D., Ind.)
Vote on First Bill:AYE
District:McCain 51% / Obama 47 %
Status: Running for Senate, seat leans Republican
Latest Statement:“I will not support a bill that I believe would result in federal tax dollars being used to pay for abortions.” (The Hill, 3/11/10)
Bart Gordon (D., Tenn.)
Vote on First Bill: Nay
District:McCain 62% / Obama 37 %
Status: Retiring
Latest Statement:“Blue Dog Rep Bart Gordon now support health-care reform.” (@CapitolHillCNN, 3/18/10)
Raul Grijalva (D., Ariz.)
Vote on First Bill:AYE
District:Obama 57% / McCain 42%
Status: Safe Seat
Latest Statement:“As I weigh it, I think — for me — a ‘no’ vote is something that I continue to lean toward,” Rep. Raúl Grijalva, D-Ariz., the co-chairman of the Congressional Progressive Caucus, told Salon in a brief interview off the House floor Wednesday. “Especially the last additions — that was kind of a slap in the face for all of us who fought for the public option.” (Salon, 3/3/10)
Luis Gutierrez (D., Ill.)
Vote on First Bill:AYE
District:Obama 85% / McCain 13%
Status: Safe
Latest Statement:The healthcare bill’s immigration provisions are enough to spur Hispanic members of Congress to vote against it, Rep. Luis Gutierrez (D-Ill.) said Thursday.
Gutierrez, a member of the Congressional Hispanic Caucus (CHC) in which he serves as chairman of its Immigration Task Force, said the caucus still has concerns over the extent to which the healthcare bill excludes illegal immigrants as well as legal residents from receiving benefits in the healthcare plan.
“They are enough to say I can’t support this bill,” Gutierrez said during an appearance on MSNBC. (The Hill, 3/11/10)
Baron Hill (D., Ind.)
Vote on First Bill:AYE
District:Obama 48% / McCain 50%
Status: Vulnerable
Latest Statement:“Throughout my congressional tenure, I have heard countless stories of how our current health care system has failed hard-working Hoosier families, and how insurance companies have engaged in unconscionable practices not deployed by any other industry. By voting for the Patient Protection and Affordable Care Act, I’m putting such words into action, and choosing to stand with those that have been shortchanged for far too long. (Official Statement, 3/20/10)
Marcy Kaptur (D., Ohio)
Vote on First Bill: AYE
District: Obama 62% / McCain 36%
Status: Safe, Stu-Packer
Latest Statement:“Marcy Kaptur, D-Ohio, said she wanted the abortion language changed, but stopped short of saying it is a deal-breaker for her. “I would not easily give over my vote for the bill” if changes are not made, she said.”(CQ.com, 3/12/10)
* * *
“I am leaning toward voting for the bill if we can properly deal with the abortion issue and we are fast about that task,” Miss Kaptur said. (Toledo Blade, 3/19/10)
* * *
“Yes I will,” Kaptur said, when asked if she’d be supporting the Senate bill. Asked why, she continued:
“We received assurances last night that we will work with the administration and Secretary Sebelius and the President to ensure existing law is maintained.” (WTVG, 3/21/10)
Dale Kildee (D., Mich.)
Vote on First Bill: AYE
District: Obama 64% / McCain 35%
Status:Safe
Latest Statement:Rep. Dale Kildee (D-MI), a key supporter of Rep. Bart Stupak’s (D-Mich.) anti-abortion language intended for the health care bill, said Tuesday night that he’s satisfied the Senate abortion language prohibits federal funding of abortions and will likely vote for the bill.
“I think the Senate language keeps the purpose of the Hyde amendment,” Kildee told reporters. “I’ll probably vote for it.” (Roll Call, 3/9/10)
* * *
“For those who know me, I have always respected and cherished the sanctity of human life,” Mr. Kildee said in his statement. “I spent six years studying to be a priest and was willing to devote my life to God. I came to Congress two years after the Hyde Amendment became law. And I have spent the last 34 years casting votes to protect the lives of the unborn.”
“I have stood up to many in my party to defend the right to life and have made no apologies for doing so,” he continued. “I now find myself disagreeing with some of the people and groups I have spent a lifetime working with. I have listened carefully to both sides, sought counsel from my priest, advice from family, friends and constituents and I have read the Senate abortion language more than a dozen times. I am convinced that the Senate language maintains the Hyde Amendment, which states that no federal money can be used for abortion.” (Washington Post, 3/17/10)
Larry Kissel (D., N.C.)
Vote on First Bill:AYE
District:Obama 52% / McCain 47%
Status: Somewhat Safe
Latest Statement:“One, Republican Lou Huddleston of Fayetteville, said he believes House leaders need Kissell’s vote now more than before.
“I don’t know that (House Speaker Nancy) Pelosi is going to have the wiggle room,” Huddleston said. “I don’t think Larry Kissell has felt the pressure yet.”
Kissell voted against the Democratic bill last fall because he said it would cut Medicare to help pay for health care reforms. “I made a promise and commitment that I would look out for Medicare, and I’m doing that,” he said at the time.” (Charlotte Observer, 3/2/10)
Suzanne Kosmas (D., Fla.)
Vote on First Bill:NAY
District:McCain 51% / Obama 49%
Status: Freshman, somewhat Safe
Latest Statement:“Kosmas, a freshman from New Smyrna Beach, is facing a mounting re-election challenge from Republicans who want to reclaim the seat Another no vote could keep her safe.” (TampaBay.com, 3/2/10)
* * *
WASHINGTON — After days of fence-sitting, U.S. Rep. Suzanne Kosmas of New Smyrna Beach said Friday that she would support a sweeping Democratic plan for healthcare reform that has divided the country even as it aims to bring health insurance to 95 percent of Americans.
Kosmas, one of 39 Democrats to oppose a similar bill in November, said in an exclusive interview with the Orlando Sentinel that she decided to change her mind because the latest version addressed some of her previous concerns about its effect on small businesses and the federal deficit.
“I’m going to vote for healthcare reform,” she said. “I know this is not a perfect bill. But in the scheme of things, it provides the best options and the best opportunities for my constituents.” (Orlando Sentinel, 3/19/10).
Dennis Kucinich (D., Ohio.)
Vote on First Bill:NAY
District:Obama 59% / McCain 39%
Status: Safe
Latest Statement:“I have doubts about this bill,” Kucinich said at a news conference he called to announce his decision to vote yes, adding: “This is not the bill I wanted to support.”
“However, after careful discussions with President Obama, Speaker Pelosi, my wife Elisabeth and close friends I have decided to cast a vote in favor of the legislation,” he announced.
Dan Lipinski (D., Ill.)
Vote on First Bill:AYE
District:Obama 64% / McCain 35%
Status: Safe
Latest Statement: “People don’t have coverage and changes need to be made, but at this point I think that the best that we can hope for this year are incremental changes,” Lipinski said in a telephone interview. “Politically, I don’t see any way that a comprehensive health care bill can be passed this year.” (Southtown Star, 2/23/10)
* * *
“A promise of changing the bill in the future is not going to suffice,” Lipinski said. “I cannot vote for the Senate bill on abortion funding, and beyond that I’m not committing to anyone that I would definitely vote for the bill, even if they change that.” (Southtown Star, 2/23/10)
Stephen Lynch (D., Mass.)
Vote on First Bill:AYE
District:Obama 60% / McCain 38%
Status: Safe
Latest Statement: In a sign of how tough it’s been for Pelosi to round up votes for the massive bill, Lynch – a South Boston Democrat who supported a House reform package last year – said he’ll probably vote against a key Senate version of the legislation, unless unexpected major changes are made soon.
Lynch, who serves as one of Pelosi’s key vote counters, said he also can’t support a proposed “deem and pass” procedure that would allow Democrats to vote to strip out controversial portions of the Senate bill and then “deem” that the entire package has passed without a second, direct vote.
“It’s disingenuous,” said Lynch, who considers unfair a Senate provision to tack a surcharge on higher-end health plans. “It would really call into question the credibility of the House.” (Boston Herald, 3/18/10)
* * *
But Lynch doesn’t see his “no” vote as a bill-killer,” saying it’s very likely to pass during Sunday’s scheduled vote: “I don’t think they would be calling the bill up on Sunday if they didn’t have the votes. if I had a bet on it, yeah, I’d probably bet that it would pass.” (Mother Jones, 3/19/10)
Betsy Markey (D., Co.)
Vote on First Bill:NAY
District:McCain 50%/Obama 49%
Status: Vulnerable
Latest Statement:“Democratic Rep. Betsy Markey intends to vote for a compromise health reform bill, the Denver Post has learned, a shift in positions that bolsters the hopes of party leaders looking to pass President Barack Obama’s key domestic policy initiative.
Markey, D-Fort Collins, is one of 39 House members who voted against a health reform bill that passed in November. That group has been courted intensely in recent weeks as Democrats look for 216 votes in support of a compromise measure, which scraps the so-called ‘public option,’ among other changes, from the House bill they earlier opposed.” (Denver Post, 3/18/10)
Eric Massa (D., N.Y.)
Vote on First Bill:NAY
District:McCain 50%/Obama 48%
Status: Resigned; District Leans Democratic
Latest Statement:N/A
Jim Matheson (D., Utah)
Vote on First Bill:NAY
District:McCain 58%/Obama 40%
Status: Safe
Latest Statement:In a statement, Matheson said the legislation “is too expensive, contains too many special deals, does not contain health care costs and will result in increases in health insurance premiums.”
Matheson said improving health care and providing affordable coverage in Utah will remain “critical” to him, but said he believes supporting the “wrong kind of reform” which will “increase health care costs” will hurt the nation more than it will help. (ksl.com, 3/20/10)
Michael McMahon (D., N.Y.)
Vote on First Bill:NAY
District:McCain 51% / Obama 49%
Status: Freshman, somewhat safe
Latest Statement:“I haven’t seen enough to have me come off my ‘no’ vote,” said McMahon (D-Staten Island/Brooklyn), who voted last year against a House version of health care reform. “I don’t see anything that would make me change my position.” (SILive.com, 2/23/10)
* * *
Dem Rep Mike McMahon of New York met yesterday with a top SEIU official and told him he’s likely to vote No, the official tells me. The official: Mike Fishman, president of SEIU 32bj, the largest property workers union in the country, with 120,000 members in eight states.
Fishman told McMahon that the union would not support him if he voted No — and suggested the hunt for a primary or third-party challenger would follow.
“He let us know he’s not supportive of the health care plan,” Fishman says. “We’ve let him know that we can’t support somebody who doesn’t support it.”
“We are going to begin talking to other unions about finding someone else for that seat,” Fishman continued. (PlumLine 3/12/10)
Scott Murphy (D., N.Y.)
Vote on First Bill:NAY
District:Obama 51 %/ McCain 48%
Status: Somewhat safe
Latest Statement:Murphy said Wednesday evening it is too soon to say how he will vote because the latest version of the bill was still being drafted. “We, right now, don’t know what we will be voting on as the next step,” he said in a “tele-town hall” (The Post-Star, 3/11/10)
* * *
Rep. Scott Murphy (D., N.Y.), who recently scored a one-on-one meeting with President Obama, is reportedly ‘open’ to switching his vote from no to yes.
* * *
“This bill is fundamentally different than the bill we voted on last November,” Murphy said, adding that while the measure “is not perfect,” he feels “much better” about it. (Albany Times-Union, 3/20/10)
Glenn Nye (D., Va.)
Vote on First Bill:NAY
District:Obama 50% / McCain 48%
Status: Vulnerable
Latest Statement:“He is going to take a look at whatever proposal comes up for a vote in the House, and make his decision based on the merits of that specific bill,” said Clark Pettig, spokesman for Rep. Glenn Nye, Virginia Democrat. (Daily Caller, 3/2/10)
Jim Oberstar (D., Minn.)
Vote on First Bill: AYE
District: 53% Obama / 44% McCain
Status: Safe
Latest Statement:“An aide to James L. Oberstar , also previously thought to be in Stupak’s group, said the Minnesota Democrat is undecided. “He hasn’t ruled out anything, including voting for the Senate bill if that’s an interim step to a better compromise,” said spokesman John Schadl.”(CQ.com, 3/12/10)
* * *
“I wanted to see the language, understand it better, have conversations with Sen. Nelson,” Oberstar said Wednesday. “On balance, it does what we need to do.”
For that reason, he’s supporting the final bill. (Politico, 3/17/10)
Tom Periello (D., Ill.)
Vote on First Bill: AYE
District: McCain 51% / Obama 48%
Status: Vulnerable
Latest Statement:“Rep. Perriello to vote for the health care reform bill, conditional on 50 Senators saying they will follow through on reconciliation fixes.“ (NBC’s Jesse Rodriguez, 3/19/10)
Mike Quigley (D., Ill.)
Vote on First Bill: AYE
District: Obama 73% / McCain 26%
Status: Safe
Latest Statement: And in a surprise to Democratic vote-counters, Quigley, an abortion-rights supporter, said Friday night Obama can’t count on his support if a deal is made with the anti-abortion bloc to get to 216. Moreover, Quigley wants to strip out anti-abortion language already in the legislation.
“I don’t feel pressured. I feel pressure to do the right thing,” Quigley told me.
Quigley spent some of Friday taking fire from the Service Employees International Union and talking to White House senior adviser David Axelrod. (Sun Times, 3/20/10)
Nick Rahall (D., W.V.)
Vote on First Bill: AYE
District: McCain 56% / Obama 42%
Status: Safe
Latest Statement: “Undecided.” Video at Good Morning America (3/20/10)
Bobby Rush (D., Ill.)
Vote on First Bill: AYE
District: Obama 87% / McCain 13%
Status: Safe
Latest Statement: “Bobby Rush can’t make up his mind about health care reform.
A Rush spokeswoman told one HuffPost reporter that Rush plans to vote “no” because he is unhappy that a discount program that reimburses hospitals for taking care of the indigent and poor was removed from the final version of the bill. She said the office was waiting for his signal to release a statement of opposition.
But at the same time, Rush himself told a different HuffPost reporter that he was undecided. “I think we’re working it out,” he told Ryan Grim.” (Huffington Post, 3/18/10)
Vic Snyder (D., Ark.)
Vote on First Bill: AYE
District: McCain 54% / Obama 44%
Status: Retiring
Latest Statement:“I’m leaning to vote for it and the others. We haven’t seen the words, we haven’t seen the scoring,” Snyder said during an appearance on Fox News. “I never like to make a final commitment until we actually see the words on paper, and have a chance for you to look at it, the people of Arkansas to look at it, and for all the analysts across the country to look at it.” (The Hill, 3/11/10)
Zack Space (D., Ohio)
Vote on First Bill: AYE
District: McCain 53% / Obama 45%
Status:Somewhat vulnerable Latest Statement:“Getting it done just to get it done is not something we should be doing. We should be doing it right,” Space told the Gannett Washington Bureau in a phone interview late Saturday.
Space said he has been getting calls and letters from his constituents, most of whom do not like the bill.
“I’m doing what I think is right,” Space said. “I have been under enormous amount of pressure this week in Washington. I have spoken to the president twice, once in the Oval Office. My own leadership has been working hard to get me to vote for this. But I don’t represent them. I represent the people in the 18th Congressional District.” (Newark Advocate, 3/20/10)
John Tanner (D., Tenn.)
Vote on First Bill: NAY
District: McCain 56% / Obama 43%
Status: Retiring
Latest Statement:Tanner Press Release
Charlie Wilson (D., Ohio)
Vote on First Bill: AYE
District: McCain 50% / Obama 48%
Status: Mostly safe
Latest Statement:“Charlie Wilson , D-Ohio, who in November supported a Stupak-sponsored abortion amendment to the House-passed health care package ( HR 3962 ) and passage of the amended bill, is among those who has reconsidered his position. He said Thursday he is willing to vote for the Senate bill. Wilson said that while he would welcome any additional guarantee that no federal funds would be used to pay for abortions, he will not withhold his support if the bill is not changed.
“I’m opposed to abortion, and I think the language in there is pretty clear that it is not something that pays for abortion,” he said [...] (CQ.com, 3/12/10)
* * *
“Rep. Charlie Wilson is one of a number of Democrats who is officially undecided about the final health care bill – but the St. Clairsville Democrat is giving off strong signals he is headed toward a “yes” vote.
Wilson is scheduled to participate today in a conference call with “pro-life religious leaders” to say that “these leaders are encouraged that this historic piece of legislation upholds restrictions on federal funding of abortion, provides critical support for pregnant women and will cover more than 30 million uninsured Americans,” according to the group Faith in Public Life, which is sponsoring the call. Wilson’s office sent out the group’s release noting Wilson’s presence.” (Columbus Dispatch, 3/18/10)
The Corner Dems Seek ‘Reciprocity’ on START
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Governor-elect Moonbeam is finding out that things are even worse than he thought:
Gov.-elect Jerry Brown said Tuesday that he wants . . .Go
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Scientists in Berlin have accidentally cured HIV with stem cells as well as possibly cured baldness.
A huge story with implications . . .Go
