Feingold: Capertown v. Massey. Most states have rules to protect judicial impartiality. In your opinion what additional steps to ensure judiciary held to highest standards.

SS: Inappropriate to make suggestions to Congress. Judicial code has a code of conduct. Many states doing what I spoke about–passing regulations. Capertown.Taken under supervisory issues over courts. At issue is that judges and lawyers must abide by highest standards of conduct. Law is minimum one must do. 

Feingold: Roberts and Alito hate campaign finance, and believe corporations ought to be able to donate. Legal advantages that allow them to amass great wealth. If court overrules Austin. Unlimited corporate spending not seen since 19th century. What precedents provide about state of elections.

SS: Attempted to answer every question. You have noted that Citizens United for September. If confirmed it would be first case I would participate in. Given that case, I think it would be inappropriate to speak about that area of the law. Suggest I’m going into that process with some prejudgment about precedent. I appreciate what you have said, special circumstance.

Feingold: I probably would say the same thing.

Grassley: I assume I can have Feingold’s time?

Leahy: Given that you turn people on, no. Up to 20 minutes.

Grassley: Never asked before in this hearing. Want to say there’s SCOTUS decision Baker v Nelson, 1972. Federal Courts lack jurisdiction to hear state marriage laws. Do you believe Court can speak about marriage?

SS: Pending in many courts. 

Grassley: Yesterday you said these are precedents. Are you saying Baker v. Nelson is not a precedent.

SS: I don’t know what status is. I will apply precedent to facts of new situation that implicates it. 

Grassley: Tell me process you’d go through over whether Baker is precedent or not.

SS: Two sides will come in. One side will say Baker applies, another will say another precedent applies. They’ll argue about what applies. And then court will look at what state has done and decide which precedent controls this outcome. It’s not that I’m attempting not to answer. Process that would be used. 

Grassley: Following what you said yesterday that certain things are precedent. You didn’t seem to compromise or hedge. Why are you hedging on this. 

SS: Its holding is a holding. It’s been a while since I looked at that case. 

Grassley: I would like to have you answer me further after you’ve studied Baker. 1996 Congress passed DOMA. Both provisions have been challenged, courts have upheld. Do you agree with federal courts which have held that DOMA does not violate Full Faith and Credit.

SS: ABA rules would not permit me to comment on case in pending before SCOTUS. SCOTUS has not addressed constitutionality of that statute. It is an impending case.

Grassley: Have you made any ruling on Full Faith and Credit Clause.

Grassley: You believe judges should take into account gender, race and ethnicity. How is being impartial a disservice to law and society.

SS: I do not believe that judges should use personal beliefs and value system. 

Grassley: Further accept that our experiences as women and people of color, personal experiences affect the facts that judges choose to see. 

[blah blah blah blah Didden Didden Didden]

Cardin: Kohl’s question on cert.

9:30 tomorrow. Starts with Kyl or Graham or someone–so drink plenty of coffee or come late!

Sotomayor back, Leahy reading a letter of some sort. There was some confusion bc Leahy’s mike didn’t work. Franken let Leahy use his. I think it was Sessions who joked it was the fastest rise of a Senator ever, suggesting Franken was taking over as Chair.

Leahy: Lily Ledbetter. Savanah Redding. How might it affect the confidence of those seeing only one woman on Court.

SS: Every president in last 20 years has attempted to promote diversity bc confidence increases when Court reflects all members of society.

Leahy: Gideon v. Wainwright. Right to counsel.

SS: Right to counsel on criminal and competent counsel. Question of whether incompetent counsel has caused damage. 

Leahy: If Constitution guarantees fundamental right to exercise right, these rights are only meaningful if American can enforce right in court.

SS: We work to ensure given meaning in Court.

Leahy: Safe to say, Constitutional right, only safe if you can enforce it.

SS: Given meaning through actions, through leg, retention of qualified counsel.

Sessions: Judicial activism, Senator [can’t say it can you, Sessions] um, our new Senator asked that. Hatch has a definition. Personal views overcome. Liberal or conservative activist judge. Sill concerned. We must ask questions. Wise latina.

Sessions: Second Amendment. It’s a big issue.

SS: It may well come up. Not familiar enough with 50 states, to know about absolute prohibition. All I can speak about, question for court would not be whether govt action in isolation, what’s the nature of govt interest. 

Sessions: Don’t you think you should recuse yourself since I don’t like your approach to guns?

Sessions: Has anyone said not a fundamental right? (I’m going to keep interrupt you so you can’t answer.)

SS: Fundamental is a legal term. 

[Oops–had a phone call, missed some–Kohl asked about when to overturn precedent]

Kohl: Antitrust. 

SS: I don’t make policy. How much had to be plead, didn’t understand it to mean that presentation of evidence at pleading to withstand motion to dismiss.

Kohl: You would not be bound by Twomley?

SS: It has to be considered.

Kohl: My reading of Twomley and your reading, my understanding it’ll have negative impact to bring anti-trust bc of requirement that they produce enormous amount of evidence before proceed. If I understand correctly, a precedent of problem.

SS: Every argument gets made to the courts, and not once but many times.

Kohl: Which cases it hears. 1% of appeals they receive.

[explains conflicting issues, other reasons to take a case]

Hatch: Seventh Circuit re incorporation doctrine. Footnote of Scalia, here’s what that footnote says. Cruikshank, 1868, immunities clause to justify incorporation, continuing validity on incorporation, we note that Cruikshank also said 1st did not apply and 14 did not apply. 14th due process clause is how you bring about incorporation. All 7th C said was incorporate immunities.  Due process well over a century. That’s the issue that’s gonna get to SCOTUS. 9th got it right.

Hatch: Your statement on judicial philosophy needs more development. You said some on this last time before Committee (Appeals job).  Do you still believe can’t read new rights into Constitution.

SS: Constitution creates rights, is immutable.  Can’t be added onto, except by amendment or by court. Could court write new right into Constitution. Different than whether a Court, in applying to a claimed interest, would protect that interest.Misnomer about right to privacy. I’ve not been reading as Court creating a right. Court saying, "there’s this situation, someone’s privacy being affected by govt regulation," Does liberty of due process protect indiv. People in shorthand have called it right to privacy. Court saying, states, police officers, can’t do this act, can do this act. 

Hatch: Courts changing means of words in Constitutions.

Hatch: Constitution governs both courts and legislatures. 

SS: Oh, you forgot the executive.

Hatch: Can it govern Courts if Courts can change its meaning.

SS: SCOTUS infallible bc its final. That is its function of checking or considering acts of govt. Constitution is interpreted by Court.

Hatch: Fellow SJC colleague, judges may perceive need for change and may make change through decisions. 

SS: Role of judges to interpret Constitution and law.

Hatch: HW Bush appointed you in 1992. Appointed Thomas, called him empathetic. Said he’d apply the facts. Which is closer to your own view. Distinguishing empathy from impartiality.

[Hatch is going to go through transcending personal biases in about 20 different formulations. Someone check–he didn’t do so for Thomas, did he?]

SS: Two have used the word empathy. Each has given it their different meaning. I can’t speak for their choice of the word or make a choice between what their meaning is. Life experiences help understand, law always directs the decision. Cannot be decided on bias or sympathy. 

I was a bit disappointed by the number of stories about the IG Report on the domestic surveillance program last week that claimed the report revealed the program was larger or more extensive than previously admitted or known. After all, the report itself notes,

The specific details of the Other Intelligence Activities remain highly classified, although the Attorney General publicly acknowledged the existence of such activities in August 2007.

Moreover, the "Other Intelligence Activities" have in fact been reported. Just days after the program was initially exposed, for example, Lichtblau and Risen reported,  

The National Security Agency has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity, according to current and former government officials.

The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the officials said. It was collected by tapping directly into some of the American telecommunication system’s main arteries, they said.

As part of the program approved by President Bush for domestic surveillance without warrants, the N.S.A. has gained the cooperation of American telecommunications companies to obtain backdoor access to streams of domestic and international communications, the officials said.[my emphasis]

In other words, those two aspects of the program–massive collection of data directly from telecommunication circuits and subsequent data mining of that data–has been reported almost from the first reporting on this program. And EFF wrote a 63-page brief collecting the many acknowledgments, from both Administration officials and members of Congress briefed on the program, of the expansive collection and data mining aspects of the program.

The "Other Intelligence Activities" Were the Source of the March 10 Hospital Confrontation

I think it important to emphasize that we do know what these "Other Intelligence Activities" (OIA) are because the report confirms that these OIAs were the source of the March 10 hospital Confrontation.

We’ve had confirmation that the collection and data mining aspects of the program were the source of the confrontation for two years. 

A 2004 dispute over the National Security Agency’s secret surveillance program that led top Justice Department officials to threaten resignation involved computer searches through massive electronic databases, according to current and former officials briefed on the program.

But the IG Report makes that explicit (though it doesn’t refer explicitly to collection and data mining). While Goldsmith and Philbin found a (legally unsupportable) way to fix Yoo’s Article II basis for the program, they couldn’t find a way to justify the OIAs. 

[In 2003] Goldsmith and Philbin became concerned that this revised analysis [making AUMF, and not Yoo’s more expansive Article II argument, the basis for the program] would not be sufficient to support the legality of certain aspects of the Other Intelligence Activities that the President had authorized under the PSP.

Goldsmith and Philbin remained unable to legally justify the OIAs on the day of the hospital confrontation.

Goldsmith, Philbin, and Comey met in the early afternoon of March 10, 2004, to discuss the meeting at the White House the day before and how DOJ should proceed. Goldsmith and Philbin confirmed their position to Comey that some of the Other Intelligence Activities under the PSP could not be legally supported and would have to be changed or shut down.

Addington wrote the OIAs into his March 11 reauthorization for the program, signed by Alberto Gonzales.

The March 11 Authorization also differed markedly from prior Authorization in three other respects.

[snip]

It clarified the description of certain Other Intelligence Activities being conducted under the PSP to address questions regarding whether such activities had actually been authorized explicitly in prior Authorizations. It also stated that in approving the prior President Authorizations as to form and legality, the Attorney General previously had authorized the same activities now being approved under the March 11 Authorization.

Goldsmith continued to maintain that these OIAs could not be legally justified.

In the days that followed [March 12, 2004], Goldsmith continued to express doubt that a viable legal rationale could be found for some of the Other Intelligence Activities being conducted under the PSP.

On March 16, 2004 Comey drafted a memorandum to White House Counsel Gonzales setting out his advice to the President. According to the memorandum, Comey advised that DOJ remained unable to find a legal basis to support certain Other Intelligence Activities that had been authorized as part of the program and that such activities should be discontinued immediately. Comey cautioned that he believed some ongoing activities under the program raised "serious issues" about congressional notification, "particularly where the legal basis for the program is the President’s decision to assert his authority to override an otherwise applicable Act of Congress."

And the Administration ultimately discontinued these OIAs.

…on March 17, 2004, the President decided to modify certain PSP intelligence-gathering activities and to discontinue certain Other Intelligence Activities that DOJ believed were legally unsupported.

While I’m not convinced those OIAs weren’t restored as soon as Goldsmith resigned and Comey turned his back, the story the IG Report tells is that Goldsmith, Philbin, and Comey identified two legal problems with the program. First, Yoo’s basis of the program on Article II power was not sustainable; Goldsmith and Philbin got around that by claiming that the AUMF authorized the President to ignore FISA. But the other problem–the one that almost led them to resign–was that there was no basis for some of the OIAs. And, the IG Report claims, their threats to resign led to the Administration to cease at least some parts of those OIAs.

Specific Act of Congress

One reason we need to focus on the specific language about these OIAs is because it suggests why and how Comey found the program to be illegal.

Comey told the DOJ OIG that of particular concern to him and Goldsmith was the notion that Yoo’s legal analysis entailed ignoring an act of Congress, and doing so without full congressional notification.

That is, something about the OIAs–the massive collection and data mining–violated the law in a way that (according to Goldsmith and Philbin and Comey) the wiretapping of people alleged to have ties to al Qaeda did not.

There are, presumably, several reasons that’s true. (And I certainly invite the lawyers to weigh in here.)

First, the entire basis of the program was a broad interpretation of "reasonable" with regards to searches. It would take one thing to argue that it was "reasonable" to search the communications of someone whom John Brennan had declared to be a terrorist. It’s an entirely different thing to search the communications of someone whom John Brennan hasn’t even reviewed.

In addition, as the EFF suit makes clear, the search of ordinary citizens’ communications implicates two other laws: the Electronic Communication Protection Act and the Wiretap Act (see this post for my NAL discussion of these laws). 

Finally, though, the language the IG Report uses to discuss the problems with the OIAs and the timing of the revolt makes me more convinced than ever that Congress’ explicit prohibition on data mining was a key part of the problem. As I’ve reported (and seem to, still, be the only one aside from joejoejoe to have reported in this context), Congress explicitly defunded the data mining of American citizens in the 2004 Defense Authorization.  

Sec. 8131.

[snip]

(b) None of the funds provided for Processing, analysis, and collaboration tools for counterterrorism foreign intelligence shall be available for deployment or implementation except for:

(1) lawful military operations of the United States conducted outside the United States; or

(2) lawful foreign intelligence activities conducted wholly overseas, or wholly against non-United States citizens.

This was (like the ECPA, Wiretap Act, and FISA), an Act of Congress–though Bush blew it off with a signing statement. Between the time Congress passed this prohibition in fall 2003 and the time of the conflict, the Administration did not brief Congress (indeed, the appear to have missed a regular briefing in January 2004, shortly after the Appropriation Act would have gone into effect). Since Yoo was gone by the time Congress passed this appropriation, they don’t seem to have written a new opinion factoring in the appropriation. So this prohibition would seem to represent two problems for Goldsmith’s and Philbin’s reliance on AUMF rather than Article II powers. Looking again at Comey’s statement to the DOG OIG…

Comey cautioned that he believed some ongoing activities under the program raised "serious issues" about congressional notification, "particularly where the legal basis for the program is the President’s decision to assert his authority to override an otherwise applicable Act of Congress."

First, the Appropriation Act was passed (obviously) after the AUMF, which presumably clarified Congress’ intent that the Administration could not data mine US person communications. Furthermore, the legality of the program would come down to whether or not Bush’s signing statement could be considered valid. (Note, this may well be why the Administration had its last minute briefing on March 10, 2004–to try to find out whether they could reverse the prohibition on using funding to data mine Americans and to try to address Comey’s concerns about congressional notification.)

Yoo Did Not Describe These "Other Intelligence Activities"

But that raises a larger question. Given the IG Report’s details about the failure of Yoo to describe these activities, to what degree did the Administration hide the data mining activities and from whom?

The IG Report suggests Yoo did not accurately address the OIAs in his legal analysis.

Yoo’s November 2, 2001 memorandum focused almost exclusively on the activity that the President later publicly confirmed as the Terrorist Surveillance Program.

[snip]

Yoo also discussed in his memoranda the legal rationale for Other Intelligence Activities authorized as part of the PSP. To the extent that particular statutes might appear to preclude these activities, Yoo concluded that "we do not believe Congress may restrict the President’s inherent consitutional powers, which allow him to gather intelligence necessary to defend the nation from direct attack.

However, as detailed in Chapter Three of the DOJ OIG report, Yoo’s discussion of some of the Other Intelligence Activities did not accurately describe the scope of these activities. Yoo’s factual discussion of these activities was later identified by his successors in the Office of Legal Counsel and ODAG in late 2003 as insufficient and presenting a serious impediment to recertification of the program as to form and legality.

Now, Yoo’s inaccurate description of the scope of the program shows two things–the later restriction on using funds to data mine Americans cannot be the whole problem with the vacuuming and data mining aspect of the program. There seems to have been a more fundamental problem with it.

In addition, consider the parallel with the Bybee Two memo, which established certain facts about Abu Zubaydah we know to have been false. The emerging pattern of Yoo using inaccurate facts in his opinions may not be an accident.

Predictably, even though Yoo didn’t accurately describe the program, the Administration tried to have his analysis of it count as having authorized the program anyway. 

Later on March 5, Gonzales called Goldsmith to request a letter from OLC stating that Yoo’s prior OLC opinions "covered the program," meaning the PSP. Philbin told the DOJ OIG that Gonzales was not requesting a new opinion that the program itself was legal, but only that the prior opinions had concluded that it was. As a result of Gonzales’s request, Goldsmith, Philbin, and Comey re-examined Yoo’s memoranda with a view toward determining whether they adequately described the actual intelligence activities of the NSA under the Authorizations. Goldsmith, Philbin, and Comey concluded that Yoo’s memoranda did not accurately describe some of the Other Intelligence Activities that were being conducted under the Presidential Authorizations implementing the PSP, and that the memoranda therefore did not provide a basis for finding that these activities were legal.

Credible or not (coming from a guy who approved the program on the same day he was read into it), Ashcroft pointed to Yoo’s inaccurate description of these OIA when he explained why he had authorized the program in the past.

In a May 20, 2004 memorandum, Ashcroft wrote that it was not until Philbin and later Goldsmith explained to him that aspects of the NSA’s Other Intelligence Activities were not accurately described in the prior Authorizations that he realized that he had been certifying the Authorizations prior to March 2004 based on a misimpression of those activities.

So why didn’t Yoo include these activities in his original opinions? We know that the Administration briefed Congress–at least partly–on the data mining aspects of the program; presumably, that’s why Jello Jay invoked TIA when he wrote his letter to Cheney. Did the Gang of Four get a full briefing on July 17, 2003, on the eve of defunding any data mining?

Or did Yoo–and the rest of the Administration–leave Congress and much of DOJ in the dark about the extent to which they were data mining the communications of American people? 

We’ll have four Dems in a row: Klobuchar, Kaufman, Specter, and Senator Al Franken (!).

Oops, just two up before lunch.

Klobuchar: How patient your mother has been. She has a lot she’d like to say. Plenty of stories. I thought I might miss my questioning opportunity. Much more patient than my mother has been, leaving messages like, "how long do these guys have to go on. DiFi was brilliant, what are you going to do?" Coburn, Heller. In Maloney, bound by precedent in Circuit. Keep an open mind of SCOTUS takes up question.

SS: Take every case case by case.

Klobuchar: Whitehouse, PRLDF, minor follow-up, ABA code of conduct bars board members from engaging in litigation because of lack of lawyer-client relationship. Not going into Wise Latina, 1994, provided to Senate for confirmation in 1997, 1998, no Senator asked you about it.

Klobuchar: What I want to talk about: criminal prosecutor. One thing I have found, if come into Crim system thinking you can change ills of society, not where those kinds of changes can be made.

SS: By time criminal defendant ends up in Court, they’ve been shaped by their lives. If you want to give people best opportunity for success, it has to be through early childhood forward. Pay attention to education, message not lost on me when I became a prosecutor. Success of communities depends on improving education and parental participation. 

Klobuchar: Limited role judge has to not make laws. Is that correct?

SS: Focusing on different part of that, as prosecutor, role not what punishment should have been, set in law.

Klobuchar: Tough decisions you have to make as prosecutor.

SS: I was influenced by television show, passion as prosecutor, Perry Mason. One of the first lawyers portrayed on television. In all cases except one, he proved his client innocent. Got actual murderer to confess. End of episode, met with character that played prosecutor. Perry said, expend all that effort to have charges be dismissed. Prosecutor: no, my job is to do justice. I thought that’s quite amazing. Look at each case individually. Some times to bring tough charge. Periodically look at quality of evidence, say there’s just not enough.

Klobuchar: Want to take pragmatic experience as prosecutor. A month ago, baggage carrier, Are you going to vote for that woman? Aren’t you worried that her emotions get in front of the law. If anyone heard the TWA case where you had to make a decision against some very sympathetic victims, I think that would have been good answer. Practical work. Go through some criminal cases, handled as judge. US v. Falso case, child pornography. Ruled that officers didn’t have probable cause, evidence should still be considered bc judge not knowingly misled. 

SS: Complicated question Second Circuit Law. Two panels, extensive discussions about implications of cases, use of internet. How much information police should or should not have before look to get a warrant. Computer = freedom of speech, accessing and thinking about it. To me, conflict in case law. Important for police officer to share with judge. Examine facts that police had. Considering whether existing 2nd Circuit, had the police actually violated [pause] get a warrant or not. One member said yes–violated Constitution. Yes. That was the way the law, the result the law required. Principles underlying unreasonable search and seizure. Don’t want police violating Constitutional basis without probable cause. Require them to go to a judge. Make police responsible for what would otherwise be the judges error? They said to judge, I don’t know. Judge’s review command warrant. Held that acts violated Constitution but evidence could be used, officers, in law, good faith exception. 

Klobuchar: Clerical error.

SS: I came out the way the Supreme Court came out.

Klobuchar: Reaction to Diaz, lab workers, opens up 90 years of precedent? Unreasonable for what we expect of criminal justice system. Create difficulties for prosecutors.

SS: Difficult to deal with people’s disappointments. Difficult to do prosecutions. It’s a decided case. As I said, I do recognize that there can be problems as former prosecutor. Can’t compel a result. 

[Klobuchar comes off as a bigger hardass on crime that SS.]

Klobuchar: Interesting story a few weeks ago. Tenacious, getting to bottoms of facts. Experts criticize you for spending too much time to figure out facts. Defended by former Thomas clerk, extraordinarily thorough. Talking about Melendez Diaz, or any issues, did delve into facts. Why important?

SS: Facts are the basis for legal decision. Judge deals with particular factual setting. To extent there’s criticism. We’re not fact finders. but ensure we understand the facts of the case to understand what legal principle applying to. Not to create hypothetical case, but to answer case that exists. My view, not suggesting any justice does or doesn’t do this, sensitize me to understand starting from the facts. Apply law to facts as they exist. Perhaps like Souter, who has that reputation, it may be that background, people are noticing, noticing where we picked up that habit.

Klobuchar: Transactional records clearing house. More people to prison, longer sentences. Greater than 6 months, in which collar cases. Twice as likely to send white collar criminals to more than 2 years in prison.  More sympathy ten years ago for white collar. Judge had former Miss America to why he shouldn’t go to jail. Sentencing, Sentencing of white collar.

SS: When I was District Court Judge, sentencing laws different than they’ve become. Amount of fraud, not consequences, number of victims. All circumstances of crime. Different perspective.

[The GOP is going to go nutter on this. "She wants to put white men in jail for as long as brown people!!!"]

SS: Crime is crime. To extent you protect interest of society, sentencing range Congress sets, all my cases, balance indiv sentence with interest society sought to protect. Guidelines mandatory.

Klobuchar: Now, guidelines, not mandatory.

SS: Booker, Phan phan, SCOTUS told district courts, consideration to guidelines, they are staying within guidelines. Prove useful as starting point. 

Klobuchar: All these guys have been asking about baseball. Watch all-star last night?

SS: Haven’t seen television for a very long time, turned it on for a bit.

Klobuchar: Derek Jeter tied it up, scored only bc hit by Joe Mauer a Twin.

Leahy: Hesitate to make any Red Sox comment. As knowledgable as anyone, having run it for years before becoming Senator. Senator impediment to staff. Air conditioning went out. Press freezing in skybox.

Kaufman: Toughest assignments is to stand between audience and lunch. Take a different tack, your time as prosecutor. Commercial litigator. What were the thoughts behind deciding to go into commercial practice.

SS: Had in DA’s office realized that criminal law couldn’t affect changes, opportunity for people. Increase of oppty had to involve increase in economic oppty. Economic development for different communities. Broaden personal understanding of law. Change, concentrate on commercial matters rather than criminal. Much of the pro bono work I did thereafter. Questions of finance and economic oppty. 

Kaufman: What actually were you dealing with?

SS: Small firm. Thought to myself, can’t go to those firms where I would be fifth guy on totem pole. Smaller firm, tended to work directly with partner. Wide variety. Grain commodity trading. Orange peels as feed for animals. Contracts they were involved in. Represented Ferrari. Dealer relationships. Customer relationships. Dealer relations of Pirelli Tire. Fendi. Trademark questions. Real estate, contracting, banking. Wide berth of issues.

Kaufman: How help on District and Circuit court?

SS: One of lessons I learned, I learned context, first, of grain commodity, commercial disputes. One main lesson. Business predictability of law may be most necessary. People organize business relationships by how they understand courts interpret contracts. 

Kaufman: District Court, avoid trial. How did commercial experience help with that?

SS: Remember client coming with substantial litigation. Novel theories here. You can win, but serious question about cost to get there. Gonna cost you millions. Client went to another lawyer. Went with that other lawyer, my firm lost that income. Figure I put on litigation exactly what they spent. Settlements are economic decisions. 

Kaufman: How did District help you on Circuit.

SS: Looking at facts. If something not addressed, I’d ask clerks to find out why those questions were not asked. I’d ask, "did you argue this before District?" Other colleagues would note. Don’t permit parties to argue new things on appeal. Sensitivity to facts.

Kaufman: Commercial experience, business cases really important current Court ignores settled law. Congress will pass foreign regulatory package. Make sure system not undermined by Court. Congress have Constitutional Authority to regulate markets?

SS: First thing that will come up.  Can’t answer that.

Kaufman: Congress’ Constitutional authority.

SS: Can’t answer that. Congress, pass laws affecting interstate commerce. Nature of statute, what facts it relies upon and it institutes. Depend on nature of statute. 

Kaufman: Congress does basically have ability regulate markets.

SS: Make laws that involve commerce between states. Pass laws that affect commercial interstate transaction.

Kaufman: What role should judge have in wisdom of statute.

SS: Trying to think of any situation where judge would have role to judge on that. 

Kaufman: Wisdom of executive agencies?

SS: Deference shown in that area as well. 

Kaufman: Securities law. What constituted securities law in 2nd circuit?

SS: Everything. Home of NYC. We are the business capital of the world (I’m sure another city is going to complain). We deal with every variant of securities law. Whatever Congress has regulated, our Circuit has ruled on, or it starts with District, we’ll eventually hear argument. It has been a part of my work as District and Circuit court.

Kaufman: NYSE, fear that it would affect market, you gave NYSE immunity even though conduct appeared egregious. 

SS: Important to recognize limited role Courts serve. Remedy against whom and for what?  Indivs injured by third parties who had done allegedly illegal acts against them. 

Kaufman: Press v. Deferred to SEC’s interpretation of its own ruling.

SS: Chevron deference. Goes to issue of who makes decisions. Policy questions. To extent an agency interpretation not inconsistent with Congressional commands, judge can’t susbstitute their own judgment about what policy should be. A set of exceptions. Apply consideration of set of exceptions. Other situations in which I have ruled that agency not interpreting statute in accordance with Congressional intent. Riverkeeper case. SCOTUS came to different view of words Congress used. Role of courts not to substitute own judgments. Apply principles of law in accordance with acts agencies doing.

Kaufman: regulators too lax. Role of private rights of access to right law oversight?

SS: Right Congress has given. It’s a part of many securities, anti-trust laws. Govt doesn’t have unlimited resources. In some cases, Congress grants to private course of action.

Kaufman: Antitrust law?

SS: No direct experience in private practice. District, baseball was one of them. I had anti-trust cases there as well. Often, cases settled. Managing them primary responsibility. I can get back to you. On Circuit, different, have participated directly, joining panels. At least two or three or four or five. 

Kaufman: Legion case, legalized private agreements to prevent private retailing. Reason to question legal theory. Role of court using economic theory to interpret acts of Congress. 

SS: Don’t use economic theory to determine constitutionality of Congressional actions. Legon, how to apply law. 

Kaufman: Illinois Brick, White wrote, considerations stare decisis. When Congress free to change course of interpretation.

SS: SD not dependent on one factor. Administrative workability, reliance factor put into rule, cost to change it, underlying doctrines in related areas would lead a court to question whether prior precedent has framework consistent with understanding in other areas. Has there been change in society that shows factual findings on which it was presmised may be wrong. 

Kaufman: Erosion in anti-Trust. Too big to fail. Should Court sitting on antitrust consider too big to fail?

SS: Purpose of anti-trust theory is premised on competition. Question like the one you pose is one that would come in particular context. Challenge to a particular approach. Court is always looking at what activity is claimed to be illegal. Question frequently is, is a particular area subject to per se barring?

Leahy: Break til 2–Specter and Franken up at 2. Then closed session, then second round of 20 minutes each. A lot of questions have been asked, not everyone has asked every question.

Russ Feingold, predictably, asked Sonia Sotomayor about executive power. I confess, I’m troubled (probably unjustifiably so) by her answer to his first question about executive power.

FEINGOLD: Let me get into a topic that I discussed at length with — with two most recent Supreme Court nominees, Chief Justice Roberts and Justice Alito, and that’s the issue of executive power.

In 2003, you spoke at a law school class about some of the legal issues that have arisen since 9/11. You started your remarks with a moving description of how Americans stood together in the days after those horrific events and how people from small, Midwestern towns and people from New York City found their common threads as Americans, you said.

As you said in that speech, while it’s hard to imagine that something positive could ever result from such a tragedy, that there was a sense in those early days of coming together as one community, that we would all help each other get through this.

And it was, of course, something that none of us had ever experienced before and something I’ve often discussed, as well. But what I have to also say is that, in the weeks and months that followed, I was gravely disappointed that the events of that awful day, the events that had brought us so close together as one nation, were sometimes used, Judge, to justify policies that departed so far from what America stands for.

So I’m going to ask you some questions that I asked now-Chief Justice Roberts at his hearing. Did that day, 9/11, change your view of the importance of individual rights and civil liberties and how they can be protected?

SOTOMAYOR: September 11th was a horrific tragedy for all of the victims of that tragedy and for the nation. I was in New York. My home is very close to the World Trade Center. I spent days not being able to drive a car into my neighborhood because my neighborhood was used as a staging area for emergency trucks.

The issue of the country’s safety and the consequences of that great tragedy are the subject of continuing discussion among not just senators, but the whole nation.

In the end, the Constitution, by its terms, protects certain individual rights. That protection is often fact-specific. Many of its terms are very broad. So what’s an unreasonable search and seizure? What are other questions or facts specific?

But in answer to your specific question, did it change my view of the Constitution? No, sir, the Constitution is a timeless document. It was intended to guide us through decades, generation after generation, to everything that would develop in our country.

It has protected us as a nation. It has inspired our survival. That doesn’t change. [my emphasis]

Sotomayor dodged Feingold’s question the same way she dodged many questions, by stating that every decision is fact-specific. Though in this case, of course, she was speaking about constitutionally protected rights in the era of the war on terror. More troubling for me, though, is that she immediately suggested an example that she will almost certainly rule on, after she is confirmed, in the next year or two–on the (il)legality of Bush’s warrantless wiretap question.

I’m troubled because rather than framing the question in terms, first and foremost, of Youngstown and a congressional limit on executive power, or of a warrant, she framed in in the same terms Yoo used to "authorize" it–with a very expansive view of what constitutes a "reasonable" search. It makes me worried that Sotyomayor would suggest that wiretapping a group like al-Haramain might be considered reasonable, even in spite of the restrictions that clearly limit doing so in FISA.

That said, when pressed (and Feingold did have to press her) she did ultimately agree that Youngstown would govern such cases.

FEINGOLD: That’s fine.

As I’m sure you’re aware, many of us on the committee discussed at length with the prior Supreme Court nominees the framework for evaluating the scope of executive power in the national security context. You already discussed this at some length with Senator Feinstein, Justice Jackson’s test in the Youngstown case.

And I and others on the committee are deeply concerned about the very broad assertion of executive power that’s been made in recent years, an interpretation that has been used to authorize the violation of clear statutory prohibitions, from the Foreign Intelligence Surveillance Act and the anti-torture statute.

You discussed with Senator Feinstein the third category, the lowest ebb category, in the Youngstown framework. And that’s where, as Justice Jackson said, the president’s power is at its lowest ebb, because Congress has, as you well explained it, specifically prohibited some action.

I take the point of careful scholars who argue that, hypothetically speaking, Congress could conceivably pass a law that is plainly unconstitutional. For example, if Congress passed a law that said that somebody other than the president would be the commander in chief of a particular armed conflict, and not subject to presidential direction, presumably, that would be out of bounds.

But setting aside such abstract hypotheticals, as far as I’m aware — and I’m pretty sure this is accurate — the Supreme Court has never relied on the Youngstown framework to conclude that the president may violate a clear statutory prohibition. In fact, in Youngstown itself, the court rejected President Truman’s plan to seize the steel mills.

Now, is that your understanding of the Supreme Court precedent in this area?

SOTOMAYOR: I haven’t cases, or a sufficient number of cases, in this area to say that I can remember every Supreme Court decision on a question related to this topic.

As you know, in the Youngstown case, the court held that the president had not acted within his powers in seizing the steel mills in the particular situation existing before him at the time.

But the question or the framework doesn’t change, which is, each situation would have to be looked at individually, because you can’t determine ahead of time with hypotheticals what a potential constitutional conclusion will be.

As I may have said in — to an earlier question, academic discussion is just that. It’s presenting the extremes of every issue and attempting to debate about, on that extreme of the legal question, how should the judge rule?

FEINGOLD: I’ll concede that point, Judge. I just — I mean, given your tremendous knowledge of the law and your preparation, I’m pretty sure you would have run into any example of where this had happened.

And I just want to note that I am unaware of and if anybody is aware of an example of where something was justified under the president’s power under the lowest ebb, I’d love to know about it, but I — I think that’s a — that’s not a question of a hypothetical. That’s a factual question about what the history of the case law is.

SOTOMAYOR: I — I can only accept your assumption. As I said, I — I have not had sufficient cases to have looked at what I know in light of that particular question that you’re posing.

FEINGOLD: In August 2002, the Office of Legal Counsel at the Department of Defense issued two memoranda considering the legal limits on interrogation of terrorism detainees. And one of these contained a detailed legal analysis of the criminal law prohibiting torture.

It concluded, among other things, that enforcement of the anti- torture statute would be an unconstitutional infringement on the president’s commander-in-chief authority.

But, Judge, that memo did not once cite to the Youngstown case or to Justice Jackson’s opinion in Youngstown. And we just learned on Friday in a new inspector general report that a November 2001 OLC memo providing the legal basis for the so-called terrorist surveillance program also did not cite Youngstown.

Now, I don’t think you would have to be familiar with those memos to answer my question. Does it strike you as odd that a complex legal analysis of the anti-torture statute or the FISA act that considers whether the president could violate those statutes would not even mention the Youngstown case?

SOTOMAYOR: I have never been an adviser to a president. That’s not a function I have served, so I don’t want to comment on what was done or not done by those advisers in that case. And it’s likely that some question — and I know some are pending before the court in one existing case, so I can’t comment.

All I can comment — on whether that’s surprising or not, I can only tell you that I would be surprised if a court didn’t consider the Youngstown framework in a decision involving this question, because it is — that case’s framework is how these issues are generally approached.

FEINGOLD: Good. I appreciate that answer.[my emphasis]

Ultimately, though I was very heartened by Sotomayor’s response to Feingold’s question about Korematsu and not judging from fear.

FEINGOLD: I realize I’m jumping back and forth through these issues. But the last one I want to bring up has to do with the wartime Supreme Court decisions like Korematsu that we look back at with some bewilderment, of course. The Korematsu v. the United States decision in which the Supreme Court upheld a government policy to round up and detain more than a hundred thousand Japanese-Americans during World War II.

It seems inconceivable that the U.S. government would have decided to put huge numbers of citizens in detention centers based on their race and yet the Supreme Court allowed that to happen. I asked Chief Justice Roberts about this, I’ll ask you as well.

Do you believe that Korematsu was wrongly decided?

SOTOMAYOR: It was, sir.

FEINGOLD: Does a judge have a duty to resist the kind of wartime fears that people understandably felt during World War II which likely played a role in the 1944 Korematsu decision?

SOTOMAYOR: A judge should never rule from fear. A judge should rule from law and the Constitution. It is inconceivable to me today that a decision permitting the detention and arrest of an individual solely on the basis of their race would be considered appropriate by our government.

FEINGOLD: Now, some of the great justices in the history of our country were involved in that decision. How does a judge resist those kind of fears?

SOTOMAYOR: One hopes, by having the — the wisdom of a Harlan in Plessy, by having the wisdom to understand always, no matter what the situation, that our Constitution has held us in good stead for over 200 years and that our survival depends on upholding it.

Now, Charlie Savage analyzed what I assume to be the same 2003 speech Feingold mentioned and concluded (with some reservations) that Sotomayor’s statements–arguing for a particularized suspicion of illegality–auger well for her approach to civil liberties. I still have a somewhat queasy stomach about her immediate invocation of unreasonable search in this context. Others–including Kagro X, who actually has one of those fancy JD things and good judgment to boot, aren’t so worried. Hopefully, I’m just being paranoid.

Schumer up. Going to follow up on Sessions and Kyl. 

Schumer: Let’s talk about your 17 years of being a judge. No colleague has referred to a case where you tried to change the law. So if a colleague looks at a few snippets rather than your extensive record, colleagues attempting to say you’d put empathy above rule of law. What having empathy means, then turn to record. Commit to rule of law?

SS: Can make and have made for 17 years.

Schumer: One would expect most sympathetic plaintiffs would win. Tragic TWA crash. Sued manufacturers of airplane. Did you have sympathy for the families?

SS: Absolutely. 

Schumer: Ruled against them.

SS: Didn’t author majority opinion. Dissent suggested that court should have followed existing law. 

Schumer: Appropriate scheme for reimbursement off US coast legislative issue. How a judge should rule. How’d you feel?

SS: One in as tragic situation, personal sense of regret but personal senses cannot command results in case. 

Schumer; I guess I don’t have to ask you whether you’re a Mets or Yankees fan?

Leahy: You’d better not let her answer or the Chair will have to vote against her.

[Schumer calls her Scalia, not Sotomayor, saying she should root for the Red Sox.]

Graham: My problem is that the cases you’ve been involved in are left of center but nothing that jumps out at me, but your speeches. I keep talking about your speeches because otherwise I have to admit you’re a boring, hugely qualified judge.

SS: I don’t use labels.

Graham: When Justice Rehnquist said he was a strict constructionist, did you know what he meant? Will you please label yourself so I can show how that means you’re not Rehnquist?

[SS torturing Lindsey because she refuses to label herself or the Constitution. Next up, Graham refuses to let pictures be released.]

Graham: Do you think Roe v Wade changed society?

SS: I think Roe v Wade looked at the Constitution and applied it.

Graham: Does the Constitution as written prohibit a legislative body from defining life?

SS: Word abortion not used in Constitution but it has a broad provision.

Lindsey, thinking he’s very clever, "And that gets us to the speeches." And on and on and on and on. That’s what drives us here. Balls and strikes. A lot of us feel that the best way to change society is to go to ballot box. A lot of the rest of us stacked the courts and don’t want to lose the advantage.

Lindsey: You’re as much of an asshole as Nino Scalia and Sam Alito, but you’re a girl. What is your answer to these criticisms?

SS: I ask tough questions at oral arguments. 

Lindsey: If I may interject Judge, do you think you have a temperament problem. 

Lindsey: I’m afraid that minorities and women will invade the Court and change the law.

SS: I understand how you can misread my wise Latina comment if you read it out of context.

Lindsey: What would a woman’s life be like if [al Qaeda] controlled the world?

Lindsey: Do you believe we are at war?

SS: 10s of thousands of soldiers in battlefield in Iraq. 

Lindsey: Familiar with military law?

[He’s going to sneak a military detention question on her.]

Lindsey: [Yup] If you capture an enemy is it your understanding that you have to let them go.

Lindsey: Puerto Rican Legal Defense Fund. Familiar with their briefs taxpayer funded abortion?

SS: No. 

Lindsey: Deny taxpayer funded abortion, deny that form of slavery. Do you agree with that?

SS: Let me explain the function of a board member.

Durbin: Two previous nominees are white males. When we ask questions of white male candidates of Republican president. Trying to make sure understand they’d go far enough in understanding plight of minorities. Will you go too far in focusing on minorities? One or two speeches, you’ve given 500. Pretty good track record. Over 3000 cases. Ricci case, focus of more than any other attention.

Durbin: Death penalty. Becoming Justice Blackmun.  Famous line, From this day forward I no longer will tinker with the machinery of death. 20 years death penalty imposed fairly or not at all.

Picking up from Christy’s earlier posts (Part I and Part II).

Leahy: If I have to work for a living I want to be a photographer. Phone rings, mom, don’t you ever say that they’ll think you don’t work.

Grassley up.

Grassley: Questions about individual property rights and how they’re protected by Constitution. Big difference between developed and developing countries and it’s because of respect for private prooperty. Important for Ag interests. I’m sure ordinary Americans besides economic interests concerned about where you stand. Kelo. Your understanding of state of 5th Amendment Takings clause?

SS: Share you view of importance of property rights.  Corporate lawyer. Not difference between developed and underdeveloped countries, invest in US bc of respect for property rights. WRT Kelo, issue is whether or not state who had determined there was a public purpose to takings. Can you contract with private developer to effect the public purpose. 

Grassley: Public use. Kelo, public purpose. Is public use and public purpose the same thing?

SS: Courts precedents over time. Two informed each other. 

Grassley: Everyone believes it was an expansion.

SS: Many litigants expressed that view. Question of whether SCOTUS overstepped Constitution, the Court believed and explained why it thought not. 

Grassley: I was going to ask whether Kelo undermines property rights.

SS: Only say in context to that case, it is the Court’s holding, entitled to stare decisis. 

Grassley: Does the Constitution allow takings with no compensation.

SS: Well, takings is complex.

Grassley: Would you strike down taking that provided no compensation at all?

SS: If taking violates Constitution, I’d be required to strike it down.

Grassley Didden. Chain drug store. 

SS: Right to day in court important one, right to require that you come to court in timely fashion.

[SS trying really hard to explain to Grassley what a statute of limitation is.]

Grassley: Regardless of statute of limitations why not publish opinion.

SS: Kelo didn’t govern. Statute of limitations did.

Grassley: EPA could not use cost/benefit. Clean Water Act, EPA had to use best technology even when upgrades were cost prohibitive. Agency interpretation entitled to deference. Do you find EPA shouldn’t be able to use cost-benefit analysis.

Feingold: Enjoying listening to you. So when you consider cameras in the court room.

SS: You were a very good lawyer.

Feingold: Executive power. 2003 Law school, issues since 9/11. How people found common threads as Americans, hard to imagine something positive could come out of it, coming together as community, we’d all help each other get through this. In weeks and months that followed, gravely disappointed, events were sometimes used, Judge, to justify policies that departed so far from what we stand for. Change view of indivdual rights and civil liberaties?

SS: Horrible tragedy. I was in NY. My home is very close. I spent days not being able to drive a car into my neighborhood. Issue of country’s safety. Continuing discussion, not just Senators, whole nation. In the end, Constitution, by its terms, protects certain individual rights. Often fact-specific. What’s an unreasonable search and seizure. In answer to specific question? Did it change view? No sir. Constitution is timeless document.

[Feingold looks like he’s not going to like what he hears. I think SS just basically decided the al-Haramain case against the plaintiffs.]

Feingold: Any elements that you think we as a nation will look back on with regret? 

SS: Historian by undergrad training. How difficult it is to make judgments about one’s current positions. History permits us to look back. Leg branch makes laws, it’s up to President to take his actions. Up to Court to examine situation as it arises. 

Feingold: Courts already dealing. You sat on panel, struck down natinal security act statute. Common themes or lessons. Rasul, Hamdan, Hamdi, Boumedienne?

SS: Look at individual set of facts. 

Feingold: SCOTUS believes mistakes were made?

SS: We don’t decide whether mistakes were made. 

Feingold: In each problem with Constitution or constitutional act. Many of us discussed at length. Deeply concerned about broad invocation of exec power. You discussed with DiFi the lowest ebb category. Congress could pass law that would violate Constitution. Never relied on Youngstown to rule that President can ignore law? Your understanding?

SS: Not enough cases to say I can remember every precedent. Youngstown, President had not acted within his powers. Framework doesn’t change.

Feingold: August 2002, TSP memo, did not cite Youngstown. Strike you as odd that complex analysis did not mention Youngstown?

SS: Never been advisor to President. Don’t want to comment on what was done or not done. Likely that some question–I can’t comment on whether that’s surprising or not. I’d be surprised if Court didn’t consider Youngstown.

Feingold: 2nd Amendment, individual right to bear arms. Question of whether incorporated into 14th Amendment. Maloney–you’d have to recuse.

SS: Judicial code that govern recusals command that would be inapprorpiate.

Feingold: What about other decision that took same position as you did in Maloney. 

[I love that Feingold is so perfectly consistent as a civil libertarian. And all I can think of is seeing a bunch of deer carcasses hung up to be cleaned. Those ‘Sconsan’s love them their guns.]

Feingold: Secret law. FISA secret law. OLC issues legal opinions binding but kept from public and Congress. These docs may contain classified operational law. Flies in face of open transparent system. Importance of law being public.

SS: Judge would look at it. Policy choices Congress makes in legislation. Some issues were part of Congressional legislation as to how FISA would operate. As you’ve mentioned, that has been amended. 

Feingold: Korematsu. Seems inconceivable that USG would have put huge numbers of people away bc of race. Was it wrongly decided.

SS: It was.

Feingold. Responsibility in war time. 

SS: Judge should never rule from fear. Should rule from law. 

Feingold: How does a judge resist those kind of fears. 

SS: Wisdom of Harlan and Plessy, wisdom to understand always that Constitution has held us in good stead for over 200 years, survival depends on upholding it. 

Kyl: Maloney.

SS: Good afternoon, by the way.

[Schools him on manners.]

Kyl: Two other decisions based on incorporation. 7th similarly, 9th, differently. 

Kyl: Recuse recuse recuse.

Kyl: Recuse recuse recuse. I’m going to try to trick you into getting off gun cases.

Kyl: Last 5% legal process will not lead to decision, supplied by heart. First 25 miles of marathon. Do you agree?

SS: Wouldn’t approach issues of judging the way President does. Judges can’t rely on what’s in their heart. Congress makes the laws. 

SS: We apply law to facts, we don’t apply feelings to facts. 

Kyl: Obama will clearly seek nominees that he’s comfortable with. I disagree with. 

Kyl: Just subjective, relativism run amuck.

Shorter Kyl: Why can’t girls judge like men?

Shorter Kyl: Why aren’t you more grateful for old white male judges?

I really think these arrogant male fucks believe they need to worry about being mean to SS. She’s kicking their ass, so far as I’ve seen.

Shorter Kyl:  I’m not saying women don’t rule differently, but I think they should set that aside.

Kyl: Any decision where you being a wise Latina meant you made a better decision?

SS: I never understood SDOC meant to say those disagreeing with her were not wise judges. I think that’s what Alito referring to when he said, when I decide a case I think about my Italian ancestors. 

The WaPo just doesn’t get it, I guess. Just days after it was revealed that Ceci Connolly was the "Play" in the WaPo’s Pay2Play dinners, she’s out with an article based in significant part on quotes from those invited to the Pay2Play dinner.

There’s Nancy-Ann DeParle, who was invited to the dinner.

Early on, Obama and health czar Nancy-Ann DeParle discussed the parallels with Johnson and creation of the health program that serves 45 million seniors and people with disabilities today. Just as Johnson gave legendary lawmaker Wilbur Mills (D-Ark.) latitude to craft the Medicare bill, Obama has asked Congress to write the health-care revamp legislation. 

[snip]

In private meetings or phone calls with legislators, Obama "has an easy familiarity," said DeParle, who often joins the sessions. "He has a way of getting right to the heart of the matter. He’s pushing and prodding and giving no ground."

When the president leans back in his chair, flashing a broad smile, "he is very persuasive," she said. After he listens to lawmakers’ concerns, he often replies: "There’s no reason to delay."

As a reminder of the blueprint they have settled on, DeParle keeps a Johnson quotation under glass on her desk, just above the keyboard. It reads: "There is but one way for a president to deal with the Congress, and that is continuously, incessantly, and without interruption."

There’s Olympia Snowe, who was invited to the dinner.

Obama has lavished attention on moderate GOP senators such as Olympia J. Snowe (Maine) and Charles E. Grassley (Iowa), who provide the seal of bipartisanship he covets. His message to Snowe, like many others, is that "this is his highest domestic priority, and he wants to get it accomplished and done this year," she said. "I indicated to him it was important to be flexible on the time frame and on trying to draft the substance of legislative policy."

Snowe and Rockefeller praised Obama for his deference to the legislative branch, but both signaled he may soon have to wade into the messier details of the bill.

"At some point, the president’s going to have to play a pivotal role in shaping what happens," Snowe said. "It is crucial."

And who knows whether Jim Cooper–who had already accepted the invitation to the dinner–is who Ceci bases this assertion on.

On Capitol Hill, conservative House Democrats are pushing back against a graduated surtax on incomes exceeding $350,000 a year, saying the plan would unduly increase the highest marginal tax rate. Many senators expressed a distaste for any tax increase for the wealthy. 

It sort of makes you wonder whether Max Baucus, Jello Jay, and Diane DeGette–the other Dems cited in the article–feel gypped that they didn’t get their invite to Katharine Weymouth’s house.

And of course, Ceci’s going to include the Third Way; any bets that Jim Kessler had Weymouth’s soiree penciled into his calendar?

"Behind closed doors, he essentially says: If this sinks, we will have trouble in 2010," said Jim Kessler, vice president for policy at the moderate Third Way think tank. "If this goes down, they will lose a whole lot of momentum on everything else. Clinton’s whole agenda went down" after the reform’s defeat.  

Mind you, I want Obama to succeed with health care reform. But this kind of puff piece probably doesn’t help–it certainly takes the news value of the article and tarnishes its value. 

And just as importantly, by relying on several of the people invited to the Pay2Play dinner, this puff piece shows, once again, that the dinner was about selling Ceci Connolly and her little network of conservative Hill friends. A pity for Kaiser Permanente (the planned sponsor); they too could have been part of this beautiful pageant.

The 9th, John Yoo? You really think the 9th Circuit is gonna be more sympathetic to your cause than the judge who already ruled Padilla can sue you? (h/t fatster)

Former Bush administration lawyer John Yoo will appeal a federal judge’s ruling that allowed a prisoner to sue him for devising the legal theories that led to his alleged torture, Yoo’s attorneys said today.

President Obama’s Justice Department, which represented Yoo in unsuccessfully seeking dismissal of the suit, filed a notice saying he would ask the Ninth U.S. Circuit Court of Appeals in San Francisco to intervene in the case. Department attorneys also said they were dropping out of the case and that Yoo was now represented by a private lawyer, not identified in the court document.

Well, I guess you gotta go through the 9th to get to Scalia and Alito…

Enter your vote below for which private lawyer Yoo has retained to try to save his rear end.

In 2007, I was on a panel with Joe Lockhart and Todd Purdum to talk about political news. We talked a lot about how the press’ insistence on covering the Lewinsky scandal–when the bulk of the country was pretty happy with the President regardless of who had given him a blow job–led to the crisis of legitimacy that let blogs arise. (To say nothing of the press’ coverage heading into the Iraq War.)

Purdum, interestingly enough, maintained that "everyone" knew Clinton was a liar, which is why they covered the Lewinsky scandal so breathlessly. When I asked who "everyone" included, he realized he meant just he and his friends on the bus, that the apparent consensus among those on the bus was never really communicated or proven to the rest of us.

At one point I said, sort of in Lockhart’s direction, that they should have just said, "It was a consensual blow job, let’s move on" and that might have ended the issue. [see 49:00 to 51:45]

Marcy Wheeler: So, finally you get to the point where, yes, Clinton did not, was not completely forthcoming about a consensual blow job. The other thing that I think could have happened is that a lot of people said but, fundamentally what happened was a consensual blow job between consenting adults. I think it’s between Bill and Hillary and Monica Lewinsky. And again, that didn’t happen. So those are three things that might have short-circuited the story.

Joe Lockhart: I will say this. I spent two and a half years with great discipline not once using that phrase, and you won’t get it out of me today. I think it, I agree with you, but it’s just, it’s a mental block. You have no idea how many times I wanted to say exactly that from behind the podium. It’s just a goddamn [grimaces face]. I completely agree with that.

I wasn’t really imagining the White House Spokesman saying blow job when I said this–just someone. Some prominent surrogate to go out there to say blow job blow job blow job.

It never happened.

And the DC press corps, I think, is apparently still horrified by the possibility that you can just say it, like that, blow job, and in doing so, expose it for all its tawdry but ultimately minor import. Perhaps just saying it like that would break the spell they were under for two years, break the magic of the Presidential blow job. I don’t know.

At some point, though, we as a country have to be willing and able to weigh what the Village did in the late 90s against the massive illegality of the Bush White House and, finally, realize there are more important things than a blow job, and we need to take those more important things at least as seriously as that magic blow job that captivated the press for so long under Clinton. 

I don’t know whether my efforts today helped or hurt those efforts. Next time I’ll just repeat, endlessly, torture torture torture. It’ll probably cause the same kind of outrage.