Sen. John Cornyn (R-Texas) Opening statement on Supreme Court nominee Elena Kagan

“Solicitor General Kagan, let me join in welcoming you to these hearings. In the last five years, this committee has met four times to consider a new Supreme Court nomination. Given our recent hearings, I think it’s vital to recall the core principles that should guide this Committee in carrying out its constitutional duty to provide advice and consent on Supreme Court nominations.

“There are two basic visions of the role of judges in America, including the Supreme Court. In the traditional vision, the courts enforce the written Constitution. They enforce the constitutional guarantees that the Framers wrote into the text of the Constitution. Under this traditional vision, a court, including the Supreme Court, has a limited — some have called it, a modest role —albeit important. No court of law has the authority to invent new rights just because a judge thinks it’s a good idea.

“That’s important because the power to make new laws belongs to the people, not the judges, not even the Supreme Court of the United States. When the Supreme Court creates new rights, the Justices take away the power of the people to govern themselves through their elected representatives. That’s not how our democracy is supposed to work.

“Of course, that doesn’t mean the meaning of the Constitution must remain fixed. The Constitution itself tells us how to change it: Article Five offers two different ways the Constitution can be amended. First, Congress can propose amendments that the States can then approve. Second, Congress can call for a constitutional convention to propose amendments. Either way, the ultimate power to change the Constitution rests with the people, not the courts.

“That’s the traditional vision. We can contrast that traditional vision with the activist vision. Under the activist vision, the Justices on the Supreme Court should feel free to change the Constitution when they see a problem that they want to solve.

“According to the activist view, the Constitution is a so-called living document. It’s a living document because the judges change it when they want to without requiring consent from the American people.

“This activist vision takes the power of the people to make the law and change the law – and gives that power to the judiciary who make the rules for the rest of us. This stands in stark contrast to the founders vision, perhaps best expressed in Federalist number 78, that the judiciary would be the “least dangerous branch” to the political rights in the Constitution because, in Hamilton’s memorable words, ‘[t]he judiciary . . . has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment.’

“Unfortunately, some Justices on the Supreme Court today still embrace the activists’ role. We saw it just last month in Graham v. Florida, a 5-4 decision overturning the judgment of the Florida legislature that allowed a life sentence for robberies. Three Justices — Stevens, Ginsburg, and Sotomayor — explained that their interpretation of the Constitution could change year-to-year and “will never stop” changing.

“Sometimes judicial activists create new rights – and sometimes they actively undermine the rights in our Constitution. For example, we can see the different approaches to constitutional interpretation in this morning’s landmark 5-4 decision on gun rights, McDonald v. City of Chicago. The five Justices who voted to apply the Second Amendment to the Chicago gun ordinance relied on history and precedent. On the other hand, the four Justices who voted not to apply the Second Amendment instead relied heavily on public policy arguments.

“The question raised by every Supreme Court nomination is whether the nominee believes in the traditional vision or the activist vision. Does the nominee believe that the courts should make policy like Congress, even though it is not accountable to the people via elections? Will the nominee enforce the written Constitution and not invent new rights? Or will the nominee see it as her job to change the Constitution to better match her policy preferences?

“Solicitor General Kagan, because you have never been a judge, what we do know about you begins, and largely ends, with your resume. We know you were a law clerk to two federal judges, and we know you served in the Clinton Administration as an advisor on many hot-button political questions, including abortion, gun rights, and affirmative action.

“We also know that you have spoken about your judicial heroes. One hero is Justice Thurgood Marshall, for whom you served a law clerk. Thurgood Marshall, of course, was a famous lawyer for, among other cases, having won the landmark civil rights case Brown v. Board of Education. But from his self-described judicial philosophy and his performance on the bench, it is clear that Justice Marshall was a judicial activist as I have described that phrase earlier. Thurgood Marshall described his judicial philosophy as ‘do what you think is right and let the law catch up.’

“Solicitor General Kagan, we know President has the right to nominate whoever he wishes. It is noteworthy, however, that among his nominees, President Obama has chosen several nominees who are clearly outside the judicial mainstream. One pending nominee bent the rules to try to keep a confessed serial killer from the death penalty. Another pending nominee has argued that there is a constitutional right to welfare payments. A third nominee argued that federal judges should internationalize our law, matching it to views abroad. These are not mainstream positions. These, in my view, are disqualifying positions.

“One challenge of this hearing is that even nominees that have expressly rejected the activist view before this committee — call it a confirmation conversion — have changed their tune after their confirmation. Last year Justice Sotomayor came before this Committee and pledged allegiance to the traditional view. She testified that ‘Judges can’t rely on what’s in their heart. They don’t determine the law. The job of a judge is to apply the law.’

“But in her first term on the Court, just finished today, Justice Sotomayor, she has voted with the liberal bloc of the court — which unabashedly embraces an activist judicial philosophy — about 90% of the time.

“You have written in a 1995 law review article, that ‘the critical inquiry’ of judicial confirmation hearings must be ‘the perspective [the nominee] would add’ and ‘the direction in which she would move the institution.’ I agree. It is important in these hearings to find out whether you would move the Supreme Court in a traditional or activist direction.

“The Constitution’s protections such as federalism, the Takings Clause, and the Second Amendment right to keep and bear arms are just a few obvious areas of inquiry. Solicitor General Kagan, the burden of proof is on you. I hope you can persuade us of the path you would take if you are confirmed to the Supreme Court. I welcome you to the Senate and I look forward to your testimony.”

Tim Johnson (DOJ)

Assistant U.S. Attorney Angel Moreno will become the interim U.S. Attorney for the Southern District of Texas after current U.S. Attorney Tim Johnson leaves at the end of this week, The Houston Chronicle reports.

Johnson has led the Houston-based office since the resignation of Don DeGabrielle in November 2008. He had been DeGabrielle’s First Assistant since 2006. Earlier this week, federal judges in the district voted to make Moreno the district’s interim U.S. Attorney.

Last month Johnson said he would join the Houston firm of Locke Lord Bissell & Liddell after his resignation became effective on Feb. 13.

President Obama has yet to nominate a permanent U.S. Attorney for the district. Republican Sens. John Cornyn and Kay Bailey Hutchison have recommended Southern District Assistant U.S. Attorney Kenneth Magidson for the post. Magidson heads the organized crime drug enforcement task force for the Southwest region. Democratic Rep. Lloyd Doggett, who chairs the Texas House Democratic delegation, is also making U.S. Attorney recommendations, but has yet to announce his candidate.

The Senate Judiciary Committee endorsed today two top Justice Department nominees whose nominations had languished on the Senate Executive Calendar for much of last year.

However, the panel lost its quorum — and its ability to conduct business — before it could consider the most high-profile nomination, that of Dawn Johnsen to head the Office of Legal Counsel.

At the end of 2009, the Senate returned all three nominations to the White House. President Obama promptly renominated them in January.

Mary L. Smith (Schoeman, Updike & Kaufman)

The panel today voted to report out of committee Tax Division nominee Mary L. Smith by a 12-7 vote. The committee endorsed Office of Legal Policy nominee Christopher Schroeder by a 16-3 vote.

As they did in her first committee vote last June, Republicans unanimously voted against sending Smith’s nomination to be Assistant Attorney General to the Senate floor. Republican senators have complained that Smith has virtually no tax law experience. The committee initially approved her last June 11 on a party line vote of 12-7.

“The Assistant Attorney General is not the kind of position that you probably would want someone learning on the job,” Sen. Chuck Grassley (R-Iowa) said at the committee meeting today.

Democrats defended Smith, noting her past work as an in-house counsel at Tyco International and as a DOJ trial attorney.

“She has more litigation, management and Justice Department experience than previous Tax Division nominees,” said Illinois Democrat Dick Durbin. He added that litigation is the “bread and butter” of the Tax Division.

Christopher Schroeder (Duke University)

On Schroeder’s nomination to be Assistant Attorney General in charge of the Office of Legal Policy, the Republican vote was split, with only Jon Kyl (Ariz.), John Cornyn (Texas), and Tom Coburn (Okla.) voting against Schroeder, who would be vetting judicial nominations if he is confirmed.

Schroeder, a Duke University law professor, has been a critic of President George W. Bush’s national security policies, which is a source of concern for some Republicans. The panel first reported him out of committee by voice vote on July 28, 2009.

“I find it very troubling that someone with those views would be vetting the judges nominated by the president,” Kyl said.

Jeff Sessions (R-Ala.), the panel’s ranking Republican, said Schroeder, a former chief counsel on the committee to then-Sen. Joe Biden (D-Del.), said the professor is a “strong partisan.” But the Republican senator said Schroeder’s views shouldn’t disqualify him from leading the Office of Legal Policy, because the office “has some political component to it.”

“The nominee is smart and capable,” Sessions said.

The panel also held over several judicial nominations and DOJ Bureau of Justice Statistics nominee James P. Lynch. The committee will consider Lynch and Johnsen at its meeting next Thursday.

“I must admit I am troubled by the number of nominations that get held,” panel Chairman Patrick Leahy (D-Vt.) complained. “Vote them up, or vote them down.”

This report was updated at 2:02 p.m.

Sen. Jeff Sessions of Alabama, the Senate Judiciary Committee’s top Republican, told his colleagues today that he will formally ask the Justice Department to identify who decided that the alleged Christmas Day airplane bomber should be treated as a civilian and not as an enemy combatant.

Jeff Sessions (Getty Images

The FBI — not the military — took Umar Farouk Abdulmutallab into custody on Dec. 25 on U.S. soil after he allegedly attempted to blow up a Detroit-bound airliner. Director of National Intelligence Dennis Blair testified yesterday on Capitol Hill that his office was not consulted about the use of FBI agents and that special terrorism investigators should have handled Abdulmutallab, according to The Washington Post.

It is unclear who made the decision to treat Abdulmutallab as a civilian. FBI Director Robert Mueller testified yesterday before the committee that the events were “fast-moving” and authorities had “no time” to get other investigators in place. But Mueller said decisions were made “appropriately,” including the decision to read Abdulmutallab his Miranda rights.

Sessions said yesterday that it seemed the decision was made “on the fly.” He added that the FBI’s handling of Abdulmutallab could have precluded the U.S. government from obtaining valuable intelligence.

“I think this is a matter of serious import,” Sessions said yesterday. “I don’t think we have clarity of rules. We need to get it straight.”

Democrats voiced support for the decisions made in the aftermath of the alleged attempted bombing. Sen. Dianne Feinstein (D-Calif.), who chairs the Senate Intelligence Committee, said yesterday that the FBI’s actions were “totally appropriate.” Senators were unable to point to an example of authorities putting an alleged terrorist apprehended on American soil immediately into military custody.

Here’s the letter Sessions and Republican Sens. Orrin Hatch (Utah), Chuck Grassley (Iowa), Jon Kyl (Ariz.), Lindsey Graham (S.C.), John Cornyn (Texas) and Tom Coburn (Okla.) sent today to Attorney General Eric Holder about the matter:

We are writing to ask who within the Department of Justice made the decision on Christmas day to treat Umar Farouk Abdulmutallab as a criminal suspect, entitled to Miranda warnings and the right to counsel, rather than as a unprivileged enemy belligerent subject to military detention and a full opportunity to gain intelligence. We would also like to know the basis for this decision, including whether the administration has a protocol or policy in place for handling al Qaeda terrorists captured in the United States.

At yesterday’s hearing before the Senate Judiciary Committee, FBI Director Robert Mueller described how Joint Terrorism Task Force agents initially interrogated Mr. Abdulmutallab without Miranda warnings for the purpose of obtaining intelligence information.  He stated that this short initial interrogation occurred before the terror suspect was taken into surgery and that the decision to provide Miranda warnings and pursue criminal charges was made shortly thereafter “in consultation with the Department of Justice and others in the administration prior to the agents going back in later that evening to interview him.” Director Mueller declined to name the person within the Department who made the decision, stating that he would first have to get approval from the Department. Nonetheless, he made clear the decision was not made “at the local level.”

The Department of Justice’s decision to afford this terrorist Miranda warnings and a civilian prosecution appears to have been made without soliciting input from the Department’s administration partners in the war on terrorism. According to testimony before both the Judiciary Committee and the Homeland Security and Governmental Affairs Committee, the Department officials who made this decision failed to consult key officials who also have a major role in counterterrorism and intelligence gathering. Dennis Blair, the Director of National Intelligence, testified that he was not consulted.  Similar testimony was provided by Director Mueller, Homeland Security Secretary Janet Napolitano, and the Director of the National Counterterrorism Center, Michael Leiter. Furthermore, Director Mueller testified he did not know whether Defense Secretary Robert Gates was consulted on this decision, which is remarkable given that Mr. Abdulmutallab appears to fit cleanly within the Military Commissions Act definition of an “unprivileged enemy belligerent.”

We believe the Department’s hasty decision to pursue criminal charges against Mr. Abdulmutallab deprived our intelligence agencies of a critical opportunity to interrogate an al Qaeda-trained terrorist who was fresh from training in Yemen. Had Mr. Abdulmutallab been transferred to military custody as an unlawful enemy belligerent, our government would have had more time to gain an understanding of the terrorist training and recruiting network on the Arabian Peninsula, as well as the activities of al Qaeda in Nigeria. More importantly, a thorough and unrushed interrogation might have revealed information to detect and disrupt the next terrorist attack. However, because Mr. Abdulmutallab was given Miranda rights and ceased cooperating, that information is now lost.

It is important that Congress fully understand the basis for the decision in this case and the process by which it was reached so that we can be assured that an appropriate process is in place to address the next terrorist who is captured and detained. To that end, please let us know who within the Department made the decision on Christmas day, as well as the basis and rationale behind the decision. Additionally, please let us know whether a protocol or policy is in place to guide the administration’s action in the next terrorism case.

This post has been updated from an earlier version.

Dawn Johnsen's nomination to head the Office of Legal Counsel hit implacable Republican opposition. (Image via CAP Action Fund)

The Republicans on the Senate Judiciary Committee asked Chairman Patrick Leahy (D-Vt.) to hold new hearings on Dawn Johnsen to become the new assistant attorney general for the Office of Legal Counsel.

The GOP senators argue that the failed Christmas Day bombing as well as other events require the panel to hold fresh hearings on her nomination, which the Senate returned to the White House without action on Dec. 24, Roll Call first reported yesterday. President Barack Obama intends to re-nominate her, despite Republican concerns about her criticism of the George W. Bush administration’s national security policies.

The letter obtained by Main Justice and signed by Republican Sens. Jeff Sessions (Ala.), Orrin Hatch (Utah), Chuck Grassley (Iowa), Jon Kyl (Ariz.), Lindsey Graham (S.C.), John Cornyn (Texas) and Tom Coburn (Okla.) says:

In recent weeks, there have been several incident threatening our national security and underscoring the need for more aggressive counterterrorism efforts, information sharing, and military and intelligence initiatives to uproot and eliminate al Qaeda and its affiliates from footholds around the globe.  At a time like this, it is essential that the Department of Justice provide sound legal guidance to the various intelligence and counterterrorism agencies within our government.

We believe many unanswered questions remain about Dawn Johnsen’s suitability to guide our Nation’s legal response to the war on terror through the Office of Legal Counsel (OLC). Mrs. Johnsen’s record calls into question her dedication to aggressive Executive action in national security matters. She has supported backward-looking investigations and written that the last administration’s detainee policies “failed miserably.” She has consistently advocated placing unnecessary constraints on the President and our intelligence professionals, constraints not required by our laws or Constitution.  Based on her statements, it is unclear whether Ms. Johnsen would be able to set aside her personal biases and provide the type of objective, yet aggressive, constitutional legal advice the President will need to effectively combat the continued terror threat. Accordingly, we ask that you hold a new hearing on her nomination before scheduling her nomination for a Committee vote.

We do not make this request lightly, but feel compelled to do so based on the nominee’s record and the position to which she has been nominated. In recent years, the OLC has been critical in authorizing appropriate government action to combat al Qaeda. For example, the Clinton administration OLC reportedly determined as a matter of law that the Executive Order banning assassinations did not apply to the targeting of top al Qaeda leadership, a ruling that appears to have been vital to CIA efforts in the 1990s and even America’s aerial drone program today. It is critical that OLC be led by a lawyer who is willing to support and authorize all necessary and appropriate action in our Nation’s continued war against al Qaeda.

For the Committee to properly discharge its advice and content duty, we believe a second hearing is necessary to evaluate Ms. Johnsen’s nomination and approach to the serious national security questions currently facing the administration.

A spokesperson for Leahy was unable to comment immediately. A spokesperson for Sessions, the ranking Republican, did not immediately respond to a request for comment on the letter and whether Republicans would call for hearings for former DOJ Tax Division nominee Mary L. Smith and ex-Office of Legal Policy nominee Christopher Schroeder. Obama intends to re-nominate the two former nominees, who were returned to the White House with Johnsen on Dec. 24.

Marge Baker, executive vice president of the liberal advocacy group, People For the American Way, released this statement:

“This latest maneuver by Senate Republicans is anything but a good faith effort to protect national security. We absolutely face serious threats, and the Obama administration needs all hands on deck. Yet Senate Republicans are holding up crucial nominees like Johnsen and Erroll Southers, the president’s nominee to head TSA.

“Dawn Johnsen was nominated over 11 months ago, and Senators have had months following her hearing to seek additional information and to consult with her. That never happened. But now that the media is reporting that Johnsen has 60 votes for confirmation, Senate Republicans are suddenly interested in engaging her.

“The request for a second hearing is a transparent and brazen effort at obstruction, and too much is at stake to waste time on it. The seven Republicans on the Judiciary Committee have had their say – they voted in lockstep against Johnsen. But 60 Senators – including senior Senate Republican Richard Lugar – support her.

“Dawn Johnsen is widely considered to have the integrity, experience, and acumen to lead the Office of Legal Counsel. She also has an abiding commitment to our national security and rule of law. We strongly urge the Judiciary Committee to quickly move the resubmitted nomination to the floor for an up-down vote.”

Andrew Ramonas contributed to this report.

This post has been updated from an earlier version.

The U.S. Attorney for the Southern District of Texas will resign next month to enter private practice in the Houston area, The Associated Press reported today.

Tim Johnson (DOJ)

Court-appointed U.S. Attorney Tim Johnson will join Locke Lord Bissell & Liddell at its Houston law offices after his resignation becomes effective on Feb. 13, according to the Houston Chronicle’s Legal Trade blog.

Johnson has led the Houston-based U.S. Attorney’s office since the resignation of Don DeGabrielle in November 2008. He had been DeGabrielle’s First Assistant since 2006.

“The past almost four years have been the most rewarding of my life,” Johnson said in a news release. “It has been an honor and a privilege to work alongside [the office's staffers].”

President Barack Obama has yet to announce his nominee to lead the Southern District office.

Republican Texas Sens. John Cornyn and Kay Bailey Hutchison have recommended Southern District Assistant U.S. Attorney Kenneth Magidson for the post. Rep. Lloyd Doggett, who chairs the Texas delegation of House Democrats, is also making U.S. Attorney recommendations, but has yet to announce his candidate.

The Dallas Morning News outed Republican Texas Sens. John Cornyn and Kay Bailey Hutchison yesterday for making a rather uncharacteristic decision in one of their U.S. Attorney recommendations.

Robert Pitman, a Western District of Texas U.S. magistrate judge who is gay, was one of two people the GOP senators recommended for the San Antonio-based prosecutor’s post. The Human Rights Campaign, a gay-rights advocacy group, gave Cornyn and Huthison a 0 percent rating on its report card of the 110th Congress.

It’s unclear whether Hutchison knew what she was getting into by endorsing Pitman. Her spokesperson, Jeff Sadosky, told the newspaper he wasn’t sure if she was aware of his sexual orientation. Cornyn spokesperson Kevin McLaughlin told The Morning News his boss knew Pitman was gay, but said it didn’t figure into the senator’s decision.

“A person’s sexuality has no bearing on his qualifications for a job. … It’s just not even remotely considered,” McLaughlin told the newspaper.

Some Texas social conservatives aren’t too happy about the revelation, which could make life difficult for Hutchison, who is running for Texas governor. Her opponent in the GOP primary in March is Republican Gov. Rick Perry, from the party’s dominant conservative wing.

Texas Home School Coalition president Tim Lambert, who is a Perry supporter, told The Morning News that recommending Pitman was “very unusual and disturbing.” He added: ”I suspect that a lot of Republican primary voters would find it interesting that Senator Hutchison would make that recommendation.”

Pitman, a former Assistant U.S. Attorney, is well respected in the Texas legal community, according to the newspaper. A recent bar association poll ranked him as the most capable judge in Travis County, The Morning News said. However, it appears Michael McCrum, a San Antonio-based lawyer at the Thompson & Knight law firm, has the inside track on the job. McCrum was recommended by both the Republican senators and Texas’s House Democrats, making him a consensus choice.

The chairman of the Texas Democratic delegation in Congress, Rep. Lloyd Doggett of Austin, has been in a fierce battle with Cornyn for control of the recommendation process. President Barack Obama ultimately makes the nominations.

Assistant Attorney General Tony West (Steve Bagley/Main Justice)

The Department of Justice and Congress are working together to beef up the government’s ability to fight health care fraud.

Assistant Attorney General Tony West told the Senate Judiciary Committee Wednesday the DOJ needs Congress’s help. “We cannot combat this fraud alone,” said West, who has headed the DOJ’s Civil Division for eight months.

Good timing. Later Wednesday, Sen. Ted Kaufman (D-Del.) introduced the Health Care Fraud Enforcement Act to help the Justice Department out.

The act would make a few key reforms, Kaufman said, including changing sentencing guidelines for criminals convicted of health care fraud, make punishments “commensurate with costs” of the fraud, and increase whistleblower payments.

According to a news release from Kaufman’s office, the bill would increase the sentences for health care fraud convictions, redefine the definition of what constitutes a health care fraud offense to include drug marketing, kickback and ERISA crimes, increase whistleblower claims, create a mental state requirement for trying health care fraud offenses and devoting $20 million annually from 2011 to 2016 in federal funding to increase Medicare fraud investigations and prosecutions.

“We have seen an increasing number of sentences of fines for where there is really serious egregious conduct. Fines have just added to the cost of doing business,” Sen. Arlen Specter (D-Pa.) said at the Senate Judiciary Committee hearing this morning.

On the Senate floor Tuesday, Kaufman spoke about the bill, the Health Care Fraud Enforcement Act of 2009. “We must also ensure law enforcement has the tools it needs,” Kaufman said.

West said that “fighting Medicare and Medicaid fraud has become a “Cabinet-level priority,” with the DOJ and HHS’s combined efforts.

The two agencies in May announced the Health Care Fraud Prevention and Enforcement Action Team (HEAT) to pursue Medicare and Medicaid fraud.  ”If we can put these people in prison, we will do that,” West said. “That’s a commitment the department has made.”

At the hearing, Sen. John Cornyn (R-Texas) said he wanted to see the DOJ’s Civil and Criminal Divisions beef up their staff to deal with health care fraud. “The bad guys outnumber the good guys,” Cornyn said. “I don’t know how we can expect [The Centers for Medicare and Medicaid Services] to do a better job, when out of the 4.4 million claims you get every day you can only review 3 percent of them. I’m not sure we are ever going to have enough good guys to outnumber the bad guys in this.”

Sen. Chuck Grassley (R-Iowa) questioned West on the 1,040 pending qui tam lawsuits waiting for the DOJ to sign on. “I find it troubling that some cases are lingering for 36 months,” Grassley said of the whistle blower suits. “Does the Justice Department have a plan to clear this backlog in a timely manner? And if so, what is it?”

Those cases, West said, are being “actively investigated.”

John Cornyn (gov)

With the White House unwilling to consider his pick for Dallas U.S. Attorney, Sen. John Cornyn (R-Texas) on Thursday eased up in his fight to get Sarah Saldana nominated, The Dallas Morning News reported. Although he still prefers the North Texas Assistant U.S. Attorney for the job, Cornyn said during a conference call with reporters that he is willing to consider other candidates, The Morning News reported.

Cornyn and Sen. Kay Bailey Hutchison (R-Texas) have been squaring off with Rep. Lloyd Doggett (D-Texas) over whether Republicans or Democrats will be in charge of recommending U.S. Attorney candidates to the White House. Cornyn has threatened to block any nominee who was not approved by a screening committee set up by the Republican senators. Doggett has insisted that Texas Democrats will have the final word.

During the Thursday call, Cornyn’s tone seemed to soften. “The ball is really in the White House’s court,” the senator said. He said he would characterize his discussions with the White House as “a negotiation,” The Morning News reported.

Doggett said on Thursday said in a statement: ”Since there are a number of well-qualified individuals for U.S. attorney, I have no doubt this will be resolved from our delegation’s recommendations.”

According to Rep. Eddie Bernice Johnson (D), Texas Democrats are unwilling to recommend Saldana, The Morning News reported. While they have yet to publicly announce their choices for the Dallas-based job,  Democrats have recommended Dallas County Assistant District Attorney Terri Moore and Dallas civil lawyer Roger Williams to President Obama, The Morning News has reported.

Cornyn spokesman Kevin McLaughlin said the senator is waiting for an answer from the White House as to why Saldana is not being considered, The Morning News reported. “She’s an arguably liberal Democrat who’s been endorsed by [abortion rights group] NARAL and a lot of liberal organizations who Senator Cornyn does not have anything in common with,” McLaughlin said, adding, “It’s not like it’s Antonin Scalia,” he added, referring to the conservative Supreme Court justice.

Just how far did Assistant U.S. Attorney Sarah Saldana make it with the Democrats in Texas?

The Ft. Worth Star-Telegram reported last week that Saldana never made it on the Lone Star’s House Democrats’ list. This item contradicted information reported in the Dallas Morning News, which reported days earlier that Saldana was on the Democrats’ short list “for much of the year,” but taken off once Sen. Kay Baily Hutchison (R-Texas) backed her.

The Star-Telegram goes further, claiming Saldana didn’t even interview with the state’s House Democrats, quoting Rep. Eddie Bernice Johnson (D), as saying Saldana’s name “never came up in our group.”

In fact, according to the Star-Telegram, Saldana had been “extremely pushy” with Johnson. The Assistant U.S. Attorney recently participated in the prosecution team that won conviction of  former Dallas Mayor Pro Tem Don Hill in what the Morning News called the largest corruption scandal in Dallas’ history.

Recently, Rep. Lloyd Doggett (D-Texas) told Main Justice that no federal attorney would be confirmed “without the Texas Democratic delegation’s support.” But the Republican senators, even though they aren’t from President Obama’s party, have not been willing to relinquish their role in the process.

Doggett has said Cornyn and Hutchison’s Republican screening committee has been “not very helpful” in the process. Democrats have drawn up their own list of candidates, which recommends Dallas County Assistant District Attorney Terri Moore and Dallas civil lawyer Roger Williams for the Northern District spot.

Calls to Doggett and Cornyn’s offices were not returned.