President Barack Obama told reporters today that he is considering making recess appointments for nominees who are being held up by Republicans in the Senate.
“I respect the Senate’s role to advise and consent, but for months, qualified, non- controversial nominees for critical positions in government, often positions related to our national security, have been held up despite having overwhelming support,” Obama said in an unexpected appearance before the White House press corps.
He didn’t say which nominees he may put in office without Senate confirmation during Congress’s recess next week for the Presidents Day holiday. Among the nominations that have stalled are Dawn Johnsen to head the Justice Department’s Office of Legal Counsel, Mary L. Smith for the Tax Division and Christopher Schroeder for the Office of Legal Policy. Their nominations languished in the Senate for months last year before they were returned to the White House in December and re-nominated last month.
“If the Senate does not act …, I will consider making several recess appointments during the upcoming recess because we can’t afford to let politics stand in the way of a well functioning government,” Obama said.
Obama made his remarks after meeting with Republican and Democratic congressional leaders Tuesday. He said he urged Senate Republicans to remove their holds on “nominees for critical jobs.”
“Surely we can set aside partisanship and do what’s traditionally been done with these nominations,” the president said.
A recess appointment lasts until the end of a current congressional session. Without Senate confirmation, the appointees must vacate their positions when a session ends. Recess appointments are controversial. President George W. Bush made a handful of recess appointments over the objections of Democrats, including John Bolton in 2005 to be the U.S. representative to the United Nations.
A senator’s hold doesn’t make it impossible for the Senate to consider nominees. Senate Majority Leader Harry Reid (D-Nev.) could file a cloture petition to move a nomination. Cutting off debate on a nomination, however, is a time-consuming process for the Senate and would be difficult for the Democratic majority with the addition of Sen. Scott Brown (R-Mass.) to the Senate. Brown became the 41st member of the Republican Senate conference last week, ending the Democrats’ filibuster-proof majority.
Reid said on the Senate floor last week that the president might have to start considering recess appointments.
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Republican Sen. Richard Shelby of Alabama has withdrawn most of his “holds” on presidential nominees, including President Obama’s picks for key Justice Department posts.
Shelby’s office announced late last night that the senator would drop his “blanket hold” on more than 70 nominees pending on the Senate Executive Calendar. A hold is when a senator — often anonymously — lets it be known he would oppose a unanimous consent request to bring a particular bill or nomination to the Senate floor. Without unanimous consent, Majority Leader Harry Reid (D-Nev.) would have to make a debatable motion to bring the matter to the floor, thus raising the possibility of a filibuster. Senate leaders usually do not even begin that process, recognizing it would be very time-consuming.
The DOJ nominees who were caught up in Shelby’s hold were:
- Mary L. Smith, to be Assistant Attorney General for the Tax Division. She was reported out of committee last Thursday.
- Christopher Schroeder, to be Assistant Attorney General for the Office of Legal Policy. He also was reported out of committee on Thursday.
- John Laub, to be director of the National Institute of Justice. He was reported out of committee on Dec. 3.
- Susan Carbon, to be director of the Office on Violence Against Women. She was reported out of committee on Dec. 3.
- Richard Hartunian, to be U.S. Attorney for the Northern District of New York. He was reported out of committee on Jan. 28.
- Andre Birotte Jr., to be U.S. Attorney for the Central District of California. He was reported out of committee on Jan. 28.
- Ron Machen, to be U.S. Attorney for the District of Columbia. He was reported out of committee on Jan. 28.
The Alabama senator had held up the more than 70 nominees since Thursday over concerns he has about a tanker contract that could bring 1,500 jobs to Mobile, Ala., and over funds he is requesting to build an FBI counterterrorism center in his state. Northrop Grumman is vying to win the tanker contract, and if successful, would assemble the planes in Mobile.
A spokesman for Shelby said the Republican had “accomplished” his goal by employing the “blanket hold,” according to Politico.
“The purpose of placing numerous holds was to get the White House’s attention on two issues that are critical to our national security – the Air Force’s aerial refueling tanker acquisition and the FBI’s Terrorist Device Analytical Center (TEDAC). With that accomplished, Sen. Shelby has decided to release his holds on all but a few nominees directly related to the Air Force tanker acquisition until the new Request for Proposal is issued,” Shelby aide Jonathan Graffeo said in a statement, according to Politico.
Shelby still has holds on the nominations of Terry Yonkers, assistant secretary of the Air Force; Frank Kendall, principal deputy undersecretary of Defense for acquisition, technology, and logistics; and Erin Conaton, undersecretary of the Air Force, Politico said.
Democrats and White House press secretary Robert Gibbs had sharply criticized Shelby for the rare move to hold up all of Obama’s nominees who were waiting for votes in the full Senate. Last week, Gibbs said there likely wouldn’t be a “greater example of silliness throughout the entire year of 2010.”
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Seven Justice Department nominees that have been reported out the Senate Judiciary Committee might not receive votes on the Senate floor anytime soon thanks to Republican Sen. Richard Shelby of Alabama.
Last night Senate Majority Leader Harry Reid (D-Nev.) said that Shelby had placed a “blanket hold” on all nominations pending on the Senate Executive Calendar, including two Assistant Attorneys General nominees, two would-be directors of DOJ offices and three prospective U.S. Attorneys.
Those nominees are:
- Mary L. Smith, Assistant Attorney General for the Tax Division. She was reported out of committee yesterday.
- Christopher Schroeder, Assistant Attorney General for the Office of Legal Policy. He also was reported out of committee yesterday.
- John Laub, Director of the National Institute of Justice. He was reported out of committee on Dec. 3.
- Susan Carbon, Director of the Office on Violence Against Women. She was reported out of committee on Dec. 3.
- Richard Hartunian, U.S. Attorney for the Northern District of New York. He was reported out of committee on Jan. 28.
- Andre Birotte Jr., U.S. Attorney for the Central District of California. He was reported out of committee on Jan. 28.
- Ron Machen, U.S. Attorney for the District of Columbia. He was reported out of committee on Jan. 28.
But the Republican’s beef isn’t with the nominees.
The Alabama senator is holding up the nominees over concerns he has about a tanker contract that could bring 1,500 jobs to Mobile, Ala., and over funds he is requesting to build an FBI counterterrorism center in his state, according to The Caucus blog on The New York Times Web site. Northrop Grumman is vying to win the tanker contract, and if successful, would assemble the plans in Mobile.
“Senator Shelby has placed holds on several pending nominees due to unaddressed national security concerns,” Shelby spokesperson Jonathan Graffeo said in a statement, according to The Caucus. “Among his concerns is that nearly 10 years after the U.S. Air Force announced plans to replace the aging tanker fleet, we still do not have a transparent and fair acquisition process to move forward. The Department of Defense must recognize that the draft Request for Proposal needs to be significantly and substantively changed.”
He added: “Senator Shelby is also deeply concerned that the administration will not release the funds already appropriated to the FBI to build the Terrorist Explosives Devices Analytical Center. This decision impedes the U.S. military, the intelligence community, and federal law enforcement personnel in their missions to exploit and analyze intelligence information critical to fighting terrorism and ensuring American security worldwide.”
Shelby would be willing to speak with the Obama administration about his concerns at any time, according to the spokesman.
White House press secretary Robert Gibbs condemned Shelby for the rare decision to hold up all of Obama’s nominees who are waiting for votes in the full Senate.
“I guess if you needed one example of what’s wrong with this town, it might be that one senator can hold up 70 qualified individuals to make government work better because he didn’t get his earmarks,” Gibbs told reporters today, according to the blog. “If that’s not the poster child for how this town needs to change the way it works, I fear there won’t be a greater example of silliness throughout the entire year of 2010.”
The Democratic National Committee also posted a video on YouTube yesterday that alleges Shelby’s holds are threatening national security.
The senator’s holds don’t make it impossible for the Senate to consider nominees. Under normal circumstances, Senate leaders honor an individual senator’s hold. But if Majority Leader Reid wants to bring a nomination to the Senate floor, he could file a cloture petition. Cutting off debate on a nomination is a time-consuming process for the Senate and would be difficult for the Democratic majority with the addition of Sen. Scott Brown (R-Mass.) to the Senate. Brown became the 41st member of the Republican Senate caucus yesterday, ending the Democrats’ filibuster-proof majority.
Reid said on the Senate floor yesterday that the president might have to start considering recess appointments, which wouldn’t require confirmation.
“The president will look at all his options,” Gibbs said, according to The Caucus.
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Although the economy was the principal focus of Wednesday night’s State of the Union speech by President Obama, the president, with Attorney General Eric Holder looking on, did mention that the Justice Department’s Civil Rights Division is “once again prosecuting civil rights violations and employment discrimination.” And the president also noted that Congress last year enacted hate crime legislation.
“We find unity in our incredible diversity, drawing on the promise enshrined in our Constitution: the notion that we are all created equal, that no matter who you are or what you look like, if you abide by the law you should be protected by it; that if you adhere to our common values you should be treated no different than anyone else.
“We must continually renew this promise. My Administration has a Civil Rights Division that is once again prosecuting civil rights violations and employment discrimination. We finally strengthened our laws to protect against crimes driven by hate. This year, I will work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are. We are going to crack down on violations of equal pay laws — so that women get equal pay for an equal day’s work. And we should continue the work of fixing our broken immigration system — to secure our borders, enforce our laws, and ensure that everyone who plays by the rules can contribute to our economy and enrich our nations.”
Main Justice interviewed Thomas Perez, head of the Civil Rights Division, last week.
“Certainly from the division’s perspective we appreciated it,” Associate Attorney General Thomas Perrelli told Main Justice about the mention of the divison. “It spotlighted the important work that they’re doing. We have in the 2010 budget the opportunity to bring on new employees to increase the focus on civil rights.” (Updated 6:07 p.m.).
President Obama also spoke about combating terrorism:
Since the day I took office, we’ve renewed our focus on the terrorists who threaten our nation. We’ve made substantial investments in our homeland security and disrupted plots that threatened to take American lives. We are filling unacceptable gaps revealed by the failed Christmas attack, with better airline security and swifter action on our intelligence. We’ve prohibited torture and strengthened partnerships from the Pacific to South Asia to the Arabian Peninsula. And in the last year, hundreds of al Qaeda’s fighters and affiliates, including many senior leaders, have been captured or killed — far more than in 2008.
But the president did not touch on the chief criticisms of the Justice Department from Republicans: the decision to hold a civilian trial for Khalid Sheikh Mohammed in New York City, close the detention facility at Guantánamo Bay, Cuba, and give Miranda rights to the attempted Christmas day bomber. In delivering the Republican response to the speech, Virginia Gov. Bob McDonnell hit on their main points:
Americans were shocked on Christmas Day to learn of the attempted bombing of a flight to Detroit. This foreign terror suspect was given the same legal rights as a U.S. citizen, and immediately stopped providing critical intelligence. As Senator-elect Scott Brown says, we should be spending taxpayer dollars to defeat terrorists, not to protect them.
Another Republican, Sen. Jeff Sessions of Alabama hit on the same theme: “One of the biggest headlines from last night’s speech is what the president did not say: a single word about the botched interrogation of the Christmas Bomber and his quest to provide foreign terrorists with the same legal rights as the Americans they target,” Sessions said on Thursday.
Meanwhile, former Vice President Dick Cheney’s daughter, Liz Cheney, released an advertisement through her organization, Keep America Safe, that criticizes the Justice Department and Holder.
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The former Massachusetts U.S. Attorney told Main Justice today that he doesn’t regret his decision not to run for the Senate seat of the late Sen. Edward Kennedy (D).
Michael Sullivan, who served as U.S. Attorney under the Bush administration from 2001 to 2009, considered a run for the seat that Republican Scott Brown won this week. He decided in October not to launch a bid for the Republican nomination because he wanted to spend more time with his family, including his son who is in high school.
“I have no regrets at all because Brown won,” Sullivan told Main Justice. “I think the world of Brown.”
He said he might have had “some regrets” if the election had been closer. But Brown received 52 percent of the vote to beat out Democrat Martha Coakley, who had 47 percent of the vote. Democrats have held the seat for more than 50 years.
Sullivan, who is a partner at The Ashcroft Group, said he believes that he could have won the seat too and isn’t ruling out a run for elected office in the future.
“I would certainly consider it,” the former U.S. Attorney said. He previously served in the Massachusetts House of Representatives and as a county district attorney. Read his full bio here.
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For the confirmation prospects for President Barack Obama’s recently re-nominated pick to lead the Justice Department Office of Legal Counsel (OLC), recent developments have brought one bit of good news and one bit of potentially bad news.
Earlier this month, long-stalled OLC nominee Dawn Johnsen received the backing of Sen. Arlen Specter (D-Pa.), who previously said he opposed her candidacy to head the elite DOJ office that assesses the constitutionality and legality of government actions.
Specter’s newly declared support theoretically put Johnsen at the 60 votes that would Democrats need to invoke cloture and proceed to a Senate floor vote on her nomination. And we emphasize the “theoretical” part, because the whip count is complicated.
Getting to 60 depended on ailing Sen. Robert Byrd (D-W.Va.) being present in the chamber and having Democrats who haven’t declared their position on cloture, such as Sen. Ben Nelson of Nebraska,who opposes Johnsen, siding with their party on the procedural vote. One Republican — Sen. Richard Lugar of Johnsen’s home state of Indiana — has said he supports her nomination and a spokesman for the senator told Main Justice he “believes” the Indiana Republican would vote for cloture.
But the Senate victory by Republican Scott Brown in Massachusetts this week was another pothole in Johnsen’s long and winding confirmation road. Once Sen.-elect Brown is seated, Democrats will have only 59 votes in the Senate, including those of independents who caucus with the Democrats. Republicans will have 41.
The Judiciary Committee had endorsed her nomination March 19, 2009, on a party-line vote of 11-7. Although Democrats had 60 votes during most of the 10 months that Johnsen was a nominee last year, opposition to Johnsen from Specter, Nelson and several Republicans made it difficult for Democratic leaders to schedule a floor vote on the nomination. Conservative senators have voiced concerns about Johnsen’s attacks on the George W. Bush administration’s national security policies and her past work for an abortion rights group.
The Senate was forced to return the nominee to the White House on Dec. 24, after the majority leadership was unable to secure enough support to hold her over to the next session of Congress. But Obama re-nominated her this week.
With Lugar and Nelson voting for cloture and Byrd in good health, the Democrats would have their 60 votes. Without the senators, Democratic leaders might be able to lean on moderate Maine Republican Sens. Olympia Snowe and Susan Collins, who both remain undecided on cloture and confirmation.
Democrats seem unlikely to win any new Republican support on Johnsen. And Sen. Jeff Sessions (R-Ala.), the ranking member on the Judiciary Committee, is urging panel Chairman Patrick Leahy (D-Vt.) to hold another hearing on Johnsen.
Sessions said in a letter to Leahy that there are “many unanswered questions” about her.
With health care still on the front burner and continued uncertainty about Johnsen’s prospects for confirmation, Johnsen could spend more months traveling a rocky road toward confirmation.
Don’t hold your breath but…
Sen. Tom Harkin (D-Iowa) is urging his fellow senators to support his effort to change Senate rules to essentially eliminate the filibuster, The Huffington Post reported today. A rule change must pass the Senate by a two-thirds vote.
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In a letter to President Barack Obama, a group of retired U.S. generals say they are “deeply concerned by the hysteria permeating the public debate” around closing the military prison at Guantánamo Bay and filing cases against terrorism suspects in civilian court. They say opponents are using the attempted bombing of Northwest Airlines Flight 253 on Christmas Day as a reason to advocate for torturing suspects to gain intelligence.
“Opponents of your plan to close Guantánamo are using the attempted bombing of Northwest Airlines Flight 253 as an excuse to renew their calls to keep the Guantánamo prison facility open and to oppose bringing terrorist suspects to justice in federal courts,” reads a letter from 33 retired flag and general officers.
“We know from experience that torture does not produce reliable intelligence, and acting on information derived through such abuse is dangerous, to our troops, and to our nation.”
In a separate letter, retired U.S. Marine Corps. Generals Joseph P. Hoar and Charles C. Krulak, co-chairmen of the group of 33, wrote Sen.-elect Scott Brown (R-Mass.) to request a meeting to discuss issues regarding the treatment and detention of enemy prisoners.
Four of the retired generals who signed the letter to Obama, Gen. David M. Maddox, Lieut. Gen. Harry E. Soyster, Major Gen. William L. Nash, and Brigadier Gen. James P. Cullen, appeared at the National Press Club where they criticized those who wanted to keep detainees as enemy combatants.
“The president and his national security team are undeterred by those who wish to spread the message of fear and retreat,” said Maddox, who said that misinformation has dominated the public debate over the issues.
“Some have suggested that suspects like Umar Farouk Abdulmutallab, the man accused of attempting to bomb Flight 253, do not deserve the protection provided in our federal courts and should instead be subject to military tribunals. On the contrary, we believe that Abdulmatallab and his ilk should be treated as the would-be mass murderers they are. To bestow on him and others like him the designation of “enemy combatant” reinforces their claims to be jihadist warriors,” write the generals.
Republican critics, including former Vice President Dick Cheney, former Attorney General Michael Mukasey and former Attorney General John Ashcroft have criticized the plan to close Guantánamo, arguing that it compromises national security.
Soyster had the opposite view. He said the hysteria was “unwarranted and dangerous.” He said that experienced intelligence officials have for years used “tried and true techniques” that have allowed the U.S. to collect relevant information and prevent future attacks.
Cullen, who lost friends in the attacks on the World Trade Center on Sept. 11, 2001, said it would be wrong to compromise the U.S. judicial system. He also said the civilian judicial system has been much more successful at convicting terrorists, with a 90 percent conviction rate, whereas military tribunals have seen only one out of three terrorism suspects convicted.
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Former U.S. Attorney Michael Sullivan (R) has announced he will not run in a special election to succeed the late Sen. Edward Kennedy (D-Mass.), The Boston Hearld reported yesterday. Sullivan, who has mentioned as a possible Republican candidate for Kennedy’s open Senate seat, served as Massachusetts’ U.S. Attorney from 2001 to April 19. He now is a partner at the The Ashcroft Group.
Sullivan told the paper, “I went back and forth on it,” adding, “But the deciding factor was I didn’t want to spend my son’s last two high school years like two ships passing in the night.” The Republican field is now narrowed to state Sen. Scott Brown and Canton selectman Robert Burr.
The Democratic-controlled legislature recently passed a law to allow Gov. Deval Patrick (D) to name a successor to serve in Kennedy’s seat until the state can hold a special election on Jan. 19. A state judge ruled that Patrick’s pick — former Democratic National Committee chairman Paul Kirk — could immediately take office, despite the usual 90-day grace-period required before new laws take effect. That ruling has stirred protests from Massachusetts Republicans. Kirk was sworn in as Kennedy’s replacement on Sept. 24. Kirk has said he will not run in the Jan. 19 special election to determine who will finish out Kennedy’s term.
The Democrats who have announced their candidacy for the special election are Massachusetts Attorney General Martha Coakley, Rep. Michael Capuano, Boston Celtics co-owner Stephen Pagliuca and Alan Khazei, founder of City Year, youth service organization.
Sullivan predicted the race will be between Coakley and Brown. “Martha Coakley has done a great job as attorney general, and I have a great deal of admiration and respect for her,” adding, “Scott Brown should do extremely well. He’s a very credible candidate and when voters get to know him, they will warm up to him.”