Operation Fast and Furious, the controversial gun-tracking effort that has prompted calls for some heads to roll at the Department of Justice, is having another side-effect: delaying a Senate vote on Kathryn Keneally, who has been nominated to be Assistant Attorney General to head DOJ’s Tax Division.

Sen. Charles E. Grassley of Iowa, the ranking Republican on the Senate Judiciary Committee, says Keneally seems qualified and that he’s prepared to vote for her. “However, given the lack of cooperation I’m getting from the Department of Justice, I can’t commit to moving forward with her nomination on the Senate floor,” Grassley said last week as the furor over Fast and Furious seemed to peak.

Grassley has been among the loudest critics of Fast and Furious, in which the Bureau of Alcohol, Tobacco, Firearms and Explosives allowed straw buyers to acquire hundreds of guns so that they could be tracked across the U.S.-Mexican border, helping law enforcement root out Mexican gangsters. The endeavor backfired mightily, as the ATF lost track of many of the weapons, two of which were found at the scene of a shootout a year ago in which a Border Patrol agent was killed.

Grassley has zeroed in on Assistant Attorney General Lanny A. Breuer, accusing the Criminal Division chief not only of  “incredibly poor judgment” but of being intentionally misleading in his statements about Fast and Furious. Grassley demanded last week that Breuer step down, or be fired by Attorney General Eric Holder (see Main Justice’s report).

Grassley has demanded that DOJ officials who are interviewed in the inquiry over Fast and Furious not double-team their questioners by being accompanied by both DOJ and personal lawyers.  Until the DOJ cooperates, Keneally’s nomination may languish, even though Grassley said she demonstrated an impressive command of tax issues — impressive, at least, when compared to those of Mary Smith, whose nomination to head the Tax Division was withdrawn after her critics complained her main qualification was not expertise in tax matters but her political connections (see Main Justice’s report).

The Fast and Furious controversy could also stall the nomination of Kevin A. Ohlson, a high DOJ official and longtime aide to Holder, to the U.S. Court of Appeals for the Armed Forces, as Main Justice noted recently.

Charles Grassley (Gov)

Sen. Charles Grassley (R-Iowa) said at the nomination hearing Monday for Supreme Court nominee Elena Kagan that he will be asking whether the would-be justice would embrace judicial activism.

“You’ve … praised jurists who believe that the role of a judge is to ‘do what you think is right and let the law catch up’ and ‘bridge the gap between law and society,’ ” Grassley said. “To me, this kind of judicial philosophy endorses judicial activism, not judicial restraint.”

Full statement embedded below.

Prepared Statement of Senator Chuck Grassley, Senate Committee on the Judiciary

Hearing for Solicitor General Elena Kagan to be an Associate Justice of the Supreme Court of the United States

Monday, June 28, 2022

Solicitor General Kagan, congratulations on your nomination to be an Associate Justice on the Supreme Court of the United States.   This is an extremely important appointment, a real honor.  I also welcome your family and friends.  I’m sure they’re proud of your nomination.  I’m glad they’re here to support you throughout your confirmation.

I’m committed to ensuring that this process is fair and respectful, but also thorough.  The Constitution tasks the Senate with conducting a comprehensive review of the nominee’s record and qualifications.  You’ve been nominated to a lifetime position on the Supreme Court.  Consequently, the Senate has a tremendous responsibility to ensure that you truly understand the proper role of a Justice and the Supreme Court in our system of government.  We want to ensure that, if confirmed, you’ll be true to the Constitution and laws as written.

We had a nice meeting in my office a few weeks ago.  You have an accomplished academic and policy background.  You excelled at Princeton University and Harvard Law School.  You went onto be an Oxford Scholar.   You clerked on the D.C. Circuit Court and the United States Supreme Court.  You were a law professor at the University of Chicago Law School, as well as Dean of Harvard Law School.  You were a lawyer here on the Judiciary Committee, and then with the Clinton Administration.  You’re now the United States Solicitor General.

What is lacking from your background is any experience on a state or federal court, or much experience as a practicing lawyer.  We don’t have any substantive evidence to demonstrate your ability to transition from a legal scholar and political operative to a fair and impartial jurist.  We’ll need to acquire that evidence through your writings and the positions you’ve taken over the years, as well as your hearing testimony.  I hope that you’ll answer our questions in a candid and forthright manner.

Our goal is not to have you commit to ruling in a certain way or for a particular party.  Our goal is to see if you are capable of exercising judicial restraint.  We want to know that you’ll exercise the preeminent responsibilities of a Justice by adhering to the law and not to the latest opinion polls.  The policy choices need to be reserved for Congress.

It’s our duty to confirm a nominee who has superior intellectual abilities.  But more importantly, it’s our duty to confirm a nominee who won’t come with a results-oriented philosophy or an agenda to impose his or her personal politics, feelings or preferences from the bench.  It’s our duty to confirm a Supreme Court nominee who will faithfully interpret the law and Constitution without personal bias.

The fact that you haven’t been a judge is not dispositive.  But because you don’t have that experience, it’s even more critical that we are persuaded that you have the proper judicial philosophy and will practice it once confirmed.  We must be convinced that you have the most important qualification of a Supreme Court Justice.  That qualification is the ability to set aside your personal feelings and political beliefs so you can administer equal justice for all in a dispassionate way.

Your relatively thin record clearly shows that you’ve been a political lawyer.  Your papers from the Clinton Library have been described as showing “a flair for the political” and a “flair for political tactics.”  You’ve been described as having “finely tuned . . . political antennae” and “a political heart.”

You were involved in a number of high profile, hot-button issues during the Clinton Administration, including gun rights, welfare reform, abortion, and the Whitewater and Paula Jones controversies.  A review of the materials produced by the Clinton Library shows that you forcefully promoted liberal positions and offered analyses and recommendations that often were more political than legal in nature.

Not only that, your Marshall memos indicate a liberal and seemingly outcome-based approach to your legal analysis.  More to the point, you have admitted that your upbringing steeped you in deeply held liberal principles.  We should know whether, as you’ve said, you have “retained them fairly intact to this date.”

A judge needs to be an independent arbiter, not an advocate or rubberstamp for a political agenda.  This point is absolutely crucial for Supreme Court Justices, since they aren’t as constrained to follow precedent to the same extent as judges on the lower courts.  If you are confirmed to be an Associate Justice, you’ll have the final say on the law.

You’ve been a prominent member of President Obama’s team as Solicitor General.  In nominating you to be an Associate Justice, President Obama clearly believes you measure up to his judicial “empathy” standard – a judge’s ability to “empathize” with certain groups over others.

Indeed, President Obama said that you credited your “hero” Justice Marshall with “reminding [you] that,  . . . ‘behind the law there are stories – stories of people’s lives as shaped by the law, stories of people’s lives as might be changed by the law . . . .’”

This “empathy” standard has been soundly rejected because it endorses the application of personal politics, feelings and preferences when judges decide cases.  It encourages judges to usurp the functions held by the executive and legislative branches of government.  A judge, and particularly a Supreme Court Justice, must unequivocally reject that standard.  It does not comport with the proper role of a judge or an appropriate judicial method.

We all know that’s not what our great American tradition envisioned for the role of the judiciary.  Rather, the Constitution requires that judges be free from personal politics, feelings and preferences.  Judges and Justices are supposed to check their biases, personal preferences and politics at the door of the courthouse, so they can administer justice in an evenhanded manner.   Our constitutional system of checks and balances prohibits Justices from implementing their political and social agendas through the judicial process.

You now have the burden of showing us that, despite your record as a political lawyer – rather than as a sitting judge or practitioner – you’ll apply the law impartially and not be a rubberstamp for the President’s agenda.  A Supreme Court Justice shouldn’t be a member of someone’s team working to achieve a preferred policy result on the bench.

We’ll want to explore your views on whether and how a judge should use his or her background and experiences when deciding cases.  We’ll want to ask you about your ability to decide cases in an impartial manner, in strict accordance with the law and Constitution, without bias or prejudice.

I’ll be asking you about your judicial philosophy, and whether you will allow biases and personal preferences to dictate your judicial method.  You once wrote that it “is not necessarily wrong or invalid” for judges to “try to mold and steer the law in order to promote certain ethical values and achieve certain social ends.”  You’ve also praised jurists who believe that the role of a judge is to “do what you think is right and let the law catch up” and “bridge the gap between law and society.”  To me, this kind of judicial philosophy endorses judicial activism, not judicial restraint.

I want to be sure that your judicial philosophy rejects legislating from the bench.  I want to know that you’ll be able to exercise judicial restraint and resist the temptation to “mold and steer” the law and the Constitution to satisfy your fiercely-held beliefs and preferences.  I want to be assured that your judging will be anchored in the Constitution, rather than in pursuit of a personal and political agenda from the bench.

Again, I’m committed to giving you a fair, respectful, but also deliberative process.  You don’t have a judicial record on a state or federal bench that evidences your ability to be an impartial jurist.  So I hope that you’ll be forthcoming in your responses to our questions about your judicial philosophy and positions on Constitutional issues.  You urged the Judiciary Committee to delve more deeply into a nominee’s record so that the Supreme Court confirmation process doesn’t turn into a “vapid and hollow charade.”  I hope you’ll live up to your own standard so we can make an informed decision.  I look forward to hearing your testimony and answers to our questions.

Roxanne Conlin (Roxanne Conlin & Associates)

Former Iowa federal prosecutor Roxanne Conlin (D) will have two challengers in the Democratic primary to see who will face off against Sen. Charles Grassley (R-Iowa) in the November election.

Friday marked the filing deadline for major party candidates with the Iowa Secretary of State. In addition to Conlin, who served as the U.S. Attorney for the Southern District of Iowa from 1977 to 1981, the other two Democratic candidates in the June primary are and former state Rep. Bob Krause and former state Sen. Tom Fiegen.

Engineer Sal Mohamed previously announced hiscandidacy for the Democratic nomination but did not file with the Secretary of State’s office.

Grassley is running unopposed in the Republican primary.

UPDATE: A previous version of this article stated that there were two Republicans running for the nomination. The Iowa Secretary of State has since corrected it’s list.

Earlier Wednesday, Justice Department officials confirmed to FoxNews the list of DOJ attorneys dubbed the “al-Qaeda Seven” — a group of lawyers lambasted in a Keep America Safe advertisement who represented Guantanamo detainees prior to their government service.

Assistant Attorney General for the Civil Division Tony West (Lonnie Tague/DOJ)

Surprisingly, that list includes Assistant Attorney General for the Civil Division Tony West, despite the fact that his representation of “American Taliban” John Walker Lindh has long been public knowledge.

In 2002, West joined a team of lawyers that represented Lindh. He discussed the case on a chat with The Washington Post back in 2002 and has appeared in numerous news articles as one of Lindh’s lawyers.

“West’s representation of Lindh is probably his best-known work, and was prominently mentioned in the ledes of several articles reporting on his nomination,” writes Media Matters.

West’s representation of Lindh was brought up during his confirmation hearing in March 2009, but few voiced any opposition to his nomination at that time. Ultimately only four Republican senators voted against West’s nomination. Sen. Charles Grassley (R-Iowa), who has pressed for information on the detainee lawyer issue, voted in favor of West’s confirmation.

Although West was not identified by name, on Feb. 18 Assistant Attorney General for the Office of Legislative Affairs Ronald Weich publicly acknowledged West’s role in the Lindh case. In a letter to Grassley, Weich wrote that “the Assistant Attorney General for the Civil Division previously represented one Afghanistan detainee, and his former employer represents other detainees.”

A spokesman for Keep America Safe said that disclosing solely the position of someone who represented terrorism suspects - even if there is only one person who fit such a description - is not good enough.

“If you only give the position and not the name, it’s another barrier to disclosing information that should be readily available,” Aaron Harison of Keep America Safe told Main Justice.

A former acting U.S. Attorney tied to the abrupt firing of the former AmeriCorps inspector general Gerald Walpin sought a presidential appointment that would allow him to keep his job as U.S. Attorney, according to a report by congressional Republicans that was obtained by ABC News.

Larry Brown (gov)

The report, released Tuesday by Sen. Chuck Grassley (R-Iowa), and Rep. Darrell Issa (R-Calif.), provided new information on the role played by Lawrence G. Brown, the former acting U.S. attorney for the Eastern District of California, in Walpin’s dismissal. Grassley is the top Republican on the Senate Finance Committee, while Issa is the ranking member of the House Oversight and Government Reform panel.

In the report, Grassley and Issa allege that Brown referred allegations of misconduct against Walpin to the Council of the Inspectors General on Integrity and Efficiency in an effort to curry favor with the Obama administration and to obtain the U.S. attorney post. The council is an organization of all presidentially appointed inspectors general.

Some back story: In January 2007, Walpin was appointed the inspector general for the Corporation for National and Community Service, known as AmeriCorps. In 2008, Walpin’s office opened an investigation into Sacramento Mayor Kevin Johnson, an Obama supporter, over the possible misuse of federal funds.  In August 2008, Walpin referred the investigation to the U.S. Attorney’s Office in the Eastern District of California. Brown, who was then acting U.S. attorney, decided not to pursue criminal charges and Johnson and his organization — the St. Hope Academy — agreed to repay the federal government some of the money. (For a full blow-by-blow, see here and here).

Brown later filed a complaint with the Council of Inspectors General on Integrity and Efficiency, a government watchdog that monitors the conduct of inspectors general, that Walpin had hindered his investigation and made improper comments to the media.

Walpin was later dismissed by the Obama administration, which he alleged was politically motivated. In response, the White House issued a letter to members of Congress, which questioned Walpin’s mental health and his ability to serve. Republicans leaped on the allegation and released a report in November that is also critical of Walpin’s firing. Grassley last year also threatened to hold up Justice Department nominees if he didn’t get more info from the White House on Walpin’s dismissal.

Tuesday’s report was a supplemental to the November release and contained several new documents, including a January 2009 letter from Brown to Sen. Dianne Feinstein (D-Calif.) seeking a recommendation for the U.S. Attorney post. U.S. Attorney Benjamin Wagner was ultimately nominated by President Obama in August.

Gerald Walpin (gov)

“None of the documents produced after the publication of our initial report undermine or conflict with the conclusions of the report,” the report released Tuesday said. “Arguably, some of the new documents could actually reinforce the public perception that the Inspector General was removed for political reasons. In particular, the revelation that the Acting U.S. Attorney was seeking a Presidential appointment at the time he filed a complaint against Walpin puts that complaint in a different light.”

The report also included excerpts from e-mails between Brown and Matthew Jacobs, Johnson’s lawyer. The report said the e-mails “do not suggest an appropriately arm’s length negotiating relationship.”

For example, the report cited this March 2009 e-mail exchange between Jacobs and Brown discussing a letter to the editor Walpin wrote about the Johnson matter:

“Larry, I expressed my outrage over Walpin’s letter to the editor to Ken, who I’m sure has communicated it to you, but that did not have the fully cathartic effect I desired so I must try another tack:

1. The U.S. Attorney (Greg) already told this guy once he’s not supposed to speak publicly about federal cases in this District.

2. He’s not supposed to speak publicly about federal cases in this District. The DOJ regs explicitly state that the U.S. Attorney is the primary spokesperson for all federal law enforcement in the District. Moreover, Hilburg has stated repeatedly, and as recently as Saturday’s Bee article, that he can’t comment on ongoing investigations. So Walpin knows he’s not supposed to comment.

3. WTF is wrong with this guy! First, he tried to effect the election; now he’s messing around with the entire region’s federal funding! Over this case?!

In all seriousness, the U.S. Attorney needs to stand up and say this isn’t right. The U.S. Attorney represents the face of justice in this District, and for this District. Please.

Thanks. Matt”

Reply from Brown: “Message heard loud and clear, Matt. I am at a complete loss and do in fact plan to speak with Gerald Walpin this morning and expressed my views in no uncertain terms. I am not going to get into details of what was said.”

“Together with his efforts to obtain a political appointment from the President, Brown’s communications with Johnson’s attorney contribute to the appearance that Walpin’s removal was more about his vigorous pursuit of the [Johnson] matter than about any other legitimate, unrelated factors,” the report said.

DOJ spokespeople Matthew Miller and Tracy Schmaler declined to comment to ABC News. Brown, who is now serving on the Sacramento Superior Court, could not be immediately reached for comment by ABC News.

Keep America Safe, the conservative non-profit founded by Liz Cheney and Bill Kristol, released a video Tuesday slamming Attorney General Eric Holder for not naming seven current Department of Justice attorneys who represented alleged terrorist detainees before joining the administration.

Set to foreboding music, the ad questions the loyalties of the so-called “Al-Qaeda Seven,” ominously depicted as seven shadowy figures standing in front of a background of jihadist images.

Keep America Safe employs several conservative supporters who support the terrorism policies of former President George W. Bush. The organization receives financial backing from Melvin Sembler, a conservative fundraiser. Michael Goldfarb, a spokesman for Republican John McCain’s 2008 presidential campaign, also serves as a political strategist.

The 501 (c) group has been needling Holder on the issue for months after he disclosed that nine DOJ employees who previously represented detainees or who worked for organizations that advocate changes to terrorism policies. The names of two of the nine are already known; Principal Deputy Solicitor General Neal Katyal formerly represented Osama bin Laden’s driver, and Jennifer Daskal represented detainees during her time at Human Rights Watch.

At a hearing in November, Sen. Charles Grassley, R-Iowa, brought up Katyal and Daskal’s work on behalf of detainees and questioned Holder on the issue. Grassley asked for the names of the lawyers, along with any projects related to detainees they have worked on since joining the DOJ.

Holder declined to disclose the names of the remaining seven appointees, offering a talking point for Republicans. In response, Holder said that it was not uncommon for the Justice Department to hire lawyers who had worked for the other side, citing examples of lawyers in the Tax Division who had represented defendants in tax litigation against the DOJ.

The Keep America Safe video closes by showing a DOJ phone number and urging viewers to call the department and demand that Holder disclose the seven names.

In a letter Friday, Republicans on the Senate Judiciary Committee accused Attorney General Eric Holder of being “non-responsive and intentionally evasive” about questions they had raised concerning current Justice Department lawyers who previously represented Guantanamo detainees.

The letter, first reported by ABC News, was signed by all seven Republican members of the committee. In it, they again asked Holder to provide a list of all political appointees within the DOJ who represented detainees before joining the department or those who worked for organizations that advocate changes to terrorism policies. The senators also asked whether any of the lawyers who had previously represented or advocated for detainees had been asked or voluntarily agreed to recuse themselves from working on detainee issues for the DOJ.

Chuck Grassley (Getty Images)

Sen. Charles Grassley, R-Iowa, first questioned Holder about potential conflicts of interest for lawyers who previously worked with detainees during a November oversight hearing. In response to Grassley’s questioning, Assistant Attorney General Ronald Weich replied  in a Feb. 18 letter that 10 politically-appointed DOJ lawyers fit his description. Six had represented detainees and four previously advocated on detainee issues, although none as registered lobbyists, he said. Weich noted in particular that Principal Deputy Solicitor General Neal Katyal previously represented a Guantanamo Bay detainee and that Jennifer Daskal, an attorney in the National Security Division, previously worked for Human Rights Watch, an international human rights organization that advocates against torture.

In the letter Friday, the senators chastised the department for not providing a full list of names.

“The February 18 response does not provide complete answers and raises a host of new questions,” the letter reads. “Simply put, this letter is at best nonresponsive and at worst, intentionally evasive.

The letter added that the lack of a complete response leaves them with “serious concerns about who is providing advice on detainee matters.”

The senators requested that Holder reply to the questions before March 12.

UPDATED 3/9/10: An earlier version of this post incorrectly stated that Holder is scheduled to appear before the Senate Judiciary Committee on March 12. The Republican senators asked Holder reply to their questions by March 12. The committee plans to hold an oversight hearing with Holder sometime in March, but a date has not yet been set.

Roxanne Conlin (Roxanne Conlin & Associates)

Former federal prosecutor Roxanne Conlin (D) is seriously behind in her fundraising as she campaigns to unseat Sen. Charles Grassley (R-Iowa): Grassley has at least eight times as much money to wage a campaign as Conlin does.

Conlin, who served as the U.S. Attorney for the Southern District of Iowa from 1977 to 1981, reported having about $500,000 cash on hand in her 2009 year-end campaign finance report. Grassley, who is seeking a sixth term in the Senate, had more than $4.4 million cash on hand at the end of the third quarter last year. He has not yet filed a year-end report.

The good news for Conlin, who is now a lawyer in private practice, is that she has raised more money than any of the other three declared Democratic candidates.

At the end of the fourth quarter, ex-state Sen. Tom Fiegen had $418.22 cash on hand. Meanwhile, ex-state Rep. Bob Krause, who has yet to file a year end report, had $3,492.51 cash on hand at the end of the third quarter. Engineer Sal Mohamed has yet to file any financial reports.

Sen. Charles Grassley (R-Iowa) (gov)

Grassley, who is running unopposed in the primary, has a number of advantages in addition to fundraising. He has wide name recognition and is well-liked in Iowa. Even outside of the state, Grassley, who sits on a number of powerful committees, including Finance, Judiciary and Agriculture, is one of the most visible senators.

Roxanne Conlin (Roxanne Conlin for Senate)

In a profile today of former federal prosecutor Roxanne Conlin, who is running for the Democratic nomination to challenge Sen. Charles Grassley (R-Iowa), the Des Moines Register says she will likely deflect expected attacks about her later career as a plaintiff’s lawyer by saying she has worked to “champion the powerless.”

Conlin’s “biggest payday” was an antitrust case on behalf of Iowa consumers against Microsoft Corp. that settled in 2007, The Register said. Conlin’s law firm split $75 million in fees with a Minnesota law firm, out of $180 million set aside by the software maker to pay Iowa consumers.

Conlin, who served as the U.S. Attorney for the Southern District of Iowa from 1977 to 1981, is one of four people seeking the Democratic nomination to challenge Grassley.

Said The Register:

In a two-minute Internet video she used to help launch her campaign, Conlin doesn’t use the word lawyer or attorney. She uses the term “prosecutor” to refer to her career before 1982, and then later describes herself as the head of a “small law firm to give a voice to everyday people who had none.”

Conlin’s background as a trial lawyer could hurt her with a segment of voters, The Register reports. However, if she is able to portray herself as an advocate for the people, it could work to her benefit, according campaign experts who spoke to The Register.

Conlin said she has used her private practice to advance the same causes she would work to further if elected, including gender discrimination, sexual harassment and government transparency.

“I have spent my life standing up to the powerful,” Conlin told The Register, adding, “It’s what I do. I don’t have any fear.” The Register reports that Conlin ” has built a reputation as a single-minded litigator with a gambler’s streak, betting on her own skill and her tolerance for long hours of preparation.”

In a video she posted on her campaign Web site, Conlin said, “Taking on the special interests has been the cause of my life,” adding,  “I’m running for U.S. Senate to take this fight to Washington.”

A Democratic former U.S. Attorney filed paperwork with the Federal Election Commission to run for Senate in Iowa, the Associated Press reported today.

Roxanne Conlin, who served as the U.S. Attorney for the Southern District of Iowa from 1977 to 1981, is looking to unseat Sen. Chuck Grassley (R-Iowa). But first, she will have to battle former state Sen. Tom Fiegen, former state Rep. Bob Krause and frequent candidate Sal Mohamed for the Democratic nomination.

“Taking on the special interests has been the cause of my life,” she said in a campaign video released today. “I’m running for U.S. Senate to take this fight to Washington.”

Here’s the full video:

The former prosecutor was the Democratic nominee for Iowa governor in 1982. Conlin has been in private practice since 1983. She is a partner at Des Moines law firm Roxanne Conlin & Associates. Read our previous report on her here.