The president won’t get a blank check on illegal spying today.

The Senate just adjourned and now both houses are in recess until 11/9–they’ll come in that day for bills to be introduced, but there will be no votes that day. The Senate returns for votes starting at 2 p.m. on 11/13 for the “lame duck” session.

The Senate did NOT vote on the NSA bill (Frist or Wilson). They passed several conference reports which we believe did not include any bad warrantless wiretapping authorization or immunization provisions. Thanks to you!! Thanks to all of your efforts!!

This is a major victory, especially with the election so close and so much political pressure to push these bad ideas into law. Together, we’ve managed to hold off passage of legislation that would give the administration a blank check and a free pass on warrantless NSA spying on Americans.

The president’s illegal wiretapping continues, but the law has not been changed to legalize warrantless spying on ordinary Americans. The country is indeed better off with the status quo than with legislation that would whitewash and ratify this spying. As you know, the president already has ample legal authorities to track and wiretap suspected terrorists–what he and no president should have is the power to unilaterally, secretly, and indefinitely wiretap Americans without court oversight of individual warrants to safeguard our fundamental rights to privacy, liberty and due process of law.

It has been a pitched battle, but today we have prevailed! And Congress has left town without gutting the statutory protections that preserve our Fourth Amendment rights. The vote on the Wilson bill was closer than on the Patriot Act reauthorization, and friends of the Fourth Amendment in Congress have resisted efforts to make these NSA bills into law this week. We’re seeing a growing recognition of the need for checks and balances, and now we must build on that.

We have work to do later next week and in October before Congress’s lame duck session to make sure people understand what blank checks the White House-Wilson and Frist bills are.

But for now we should savor this. And rest.

With deepest gratitude,

Lisa

Many thanks to everyone in the coalition who has been working so hard against the White House-Wilson bill. Last night our bipartisan allies in the House spoke out in defense of the Fourth Amendment with passion and strength.

The majority denied any opportunity to offer the bipartisan substitute as an amendment we supported in order to force the only alternative to the bill to be a partisan motion, the Democratic right to move to recommit the bill. Despite this effort to intimidate both Republicans and Democrats and the inflated rhetoric claiming anyone who objects to the bill doesn’t want to protect the country from terrorism, the motion was very close: 202 in favor and 221 against (with 10 members not voting). Ten Republicans joined 191 Democrats and 1 Independent in voting to restore judicial checks and balances on intelligence wiretapping; only 4 Democrats voted against the motion.

On the final passage vote, Wilson’s bill to allow warrantless surveillance of Americans passed 232 to 191, with 13 Republicans joining 187 Democrats and the man running for Senate from Vermont; 17 Democrats voted with the majority. While this was not as close as the vote on the motion, it was still a strong showing just five weeks before the election.

Please do not be defeated - we are making serious progress in the national dialogue about protecting civil liberties while keeping the country safe. The bill plainly would give a blank check to the president and future presidents. And I know each of you is doing everything possible to make that check bounce in the Senate!

The Senate is in session today debating the fence bill. Both the Senate and House of Representatives are expected to recess late Friday night/early Saturday morning. Please continue your efforts over the next 24-36 hours to prevent the bill from passing the Senate.

Thank you for all your help and hard work!

On Thursday, September 7, the Senate Judiciary Committee met to mark up the Cheney-Specter bill, S. 2453. Instead of showing any desire to reassert their constitutionally established powers to hold the executive branch accountable to the rule of law, the Republican majority chose instead to lie down and grant the president a “blank check” to trample our rights as he sees fit.

The most striking example of this willingness to bow down to the president occurred when Senator Russ Feingold (D-WI) sought further clarification of S. 2453. He repeatedly asked his Republican colleagues to elaborate on the meaning and scope of the bill, but it soon became clear that his colleagues could not clearly explain the meaning of a bill the majority was ready to approve. The members of the Senate Judiciary Committee were willing to approve a bill granting the president unprecedented authority to spy on his fellow citizens without any clear understanding of the scope of the bill or a rational explanation of its necessity. They had the opportunity to strike some of the bill’s most problematic provisions, and failed to do so on party line votes.

In addition to Senator Feingold’s concerns, Ranking Member Senator Patrick Leahy (D-VT) noted that this bill would essentially “pass a law to break a law.” It would grant the administration powers a federal court has already ruled unconstitutional. Senator Dianne Feinstein (D-CA) questioned the hastiness of the decision to approve a bill, the most important legislation the committee will produce all year, when the program can easily fit within the parameters established in the Foreign Intelligence Surveillance Act (FISA) with “modest modifications.” As a member of the Senate Intelligence Committee, Senator Feinstein has been briefed on some of the specifics of the program, making her well qualified to make that assessment. Senator Ted Kennedy (D-MA) noted that FISA had originally been approved with only one objection, due to the careful consideration between the competing concerns of security and civil liberties. He further questioned why the executive branch has been so unwilling to work with Congress on such an important issue.

Rather than engaging in substantive discussion, supporters of the president’s warrantless wiretapping program used their time to continue their superficial and off-point rhetoric. Senator John Cornyn (D-TX) sought to criticize Judge Anna Diggs Taylor’s recent NSA decision and complain about the “judge shopping” that allowed the case to end up in her court. Yet he failed to point out, as the National Association of Criminal Defense Lawyers’ Jack King did in his Washington Post letter to the editor (www.washingtonpost.com/wp-dyn/content/article/2006/09/05/AR2006090501192.html), “the ACLU and its plaintiffs filed exactly one suit, in exactly one forum, in which cases are randomly assigned. The fact that Judge Taylor’s name came up when the wheel was spun was pure chance.”

In the end, the two-hour rule was invoked and the committee adjourned without taking a vote. While it seems likely that they will revisit the issue next week, Chairman Specter has also indicated that he may seek to bypass his own committee and bring the Cheney-Specter bill directly to the floor. With a bipartisan group of Senators already objecting to the legislation, we are hopeful that the Senate will stand firm in its commitment to the rule of law and reject this appeasement of the president.

Memo from D.C., by Lisa Graves, Senior Counsel for Legislative Strategy

Senate Judiciary Committee Chairman Arlen Specter has attracted some good press for his saber rattling on President Bush’s warrantless wiretapping program, but behind the headlines his bill, co-authored with Vice President Dick Cheney, would basically repeal the Fourth Amendment protections that were written into the Foreign Intelligence Surveillance Act in the wake of Watergate. As they say in the East, a sword is useless in the hands of a coward, which really means that empty threats to hold the president accountable are basically useless.

And so far no “leader” on the hill has been willing to issue a subpoena to the White House or the telecommunication companies to pierce through the rhetoric to find out how many Americans are having their Fourth Amendment and statutory rights to privacy violated by the NSA at the president’s direction. The only way to get a subpoena for the truth issued from the hill is for there to be a majority willing to hold the president accountable and issue the legal command for the truth. This isn’t a partisan issue–it’s a constitutional issue and party loyalty should not trump the checks and balances designed to safeguard our liberty.

The lack of any real check against the president from Congress was evident in the blank check some in Congress tried to give the president right before they left for August vacations. Actually, the check isn’t blank–it’s filled in for the exact amount of power sought by the president: unlimited power to engage in warrantless wiretapping, without any mandatory judicial check. Here’s what happened:

The Senate Judiciary Committee room was packed on Thursday, August 3rd, as many lobbyists and Senate staff waited to see if there would be a vote on the Cheney-Specter bill. Administration lobbyists sat in their usual seats behind the Republican staffers and while the cordoned off press area was overflowing. Slowly, the Members’ chairs filled as Senator Specter waited for a quorum so he could push for a vote on his bill.

Once a sufficient number of Senators showed up, he starting asking for a vote on his extremely controversial and extreme bill to legalize the president’s spying on Americans. But, as you might imagine, members of Congress wanted to debate this radical effort to re-write the law. Actually, most of the debate came from the Democratic side of the room, while Republicans chatted amongst themselves, having already pledged to due what Dick wants, Vice President Cheney that is.

Senator Leahy spoke strongly against the bill, as did Senator Durbin. Then Senator Feinstein began her eloquent and thoughtful remarks. Mid-way through, Chairman Specter interrupted her to ask her how much longer since Republican Senators were eager to vote and leave, and she politely continued. When she concluded the chairman noted that she had spoken for a whole 15 minutes, actually not very long when you consider what is at stake as Senator Leahy pointed out–especially since she serves on both the Judiciary and Intelligence Committees, has been briefed into some of the NSA programs and still opposes the Cheney-Specter bill.

Senator Specter actually asserted that his bill’s language that the president should be able to wiretap outside of FISA was language already in the Foreign Intelligence Surveillance Act, which would be mistaken, to say the least. Senator DeWine spoke in favor of approving the NSA’s surveillance program and as Senator Feingold and Schumer sought recognition, the clock high on the wall by the frieze of astrological signs (clearly from a different era) buzzed to signal a vote on the floor of the Senate.

Senator Specter recessed the hearing to reconvene in the president’s room right next to the Senate chamber right after the vote. Staff and press quickly gathered materials and began the walk toward the Capitol on the nearly 100 degree day. We had to run the gantlet to get into the room, which is hard for the public to access. Once staff and press assembled in the room with big, old red leather chairs, Senator Specter entered the room. He hit the gavel hard and said someone had invoked the “two-hour” rule. The rule prevents the committee from meeting for two hours past the beginning of that legislative day. This is so members can participate in floor debates in spite of endless committee meetings.

Several people in the bipartisan crowd wanted to applaud or do the wave, but did not. The Senator was obviously disappointed and joked that if there were no objections he would report his bill. He gaveled the meeting to a conclusion, saying he would get the bill out in September. Staff and press drained from the room, as my allies and I took advantage of the big red chairs and cool room to finally breathe a sigh of relief. It seemed that we had been holding our breath all morning and for months, hoping to make it through the summer without these bad NSA bills getting a vote and rolling back our fundamental rights.

As we left that day, staffers were joking that the jets to whisk members away were fueling on the tarmacs and that we would just have jet fumes in a few short hours. And honestly nothing could have smelled better than that, given how hard the White House had been pushing to get the bill it wrote signed by a vote so it could cash out our rights.

third of three entries

The Senate’s treatment of John Roberts’ prior nominations reveals some of the institutional difficulties the political branches have struggled with serving as a check on the independent judicial branch of our federal government.

For the past few decades in particular, since the defeat by filibuster of Justice Abe Fortas, LBJ’s nominee for chief justice, the confirmation process has seen numerous substantive and procedural battles.

The intersection of the political branches with this dispassionate and impartial judicial branch has often been a passage rife with friction, dating back to George Washington’s chief justice nominee Justice John Rutledge, who was defeated based in part on a speech he’d given criticizing the Jay treaty favored by Senate Federalists.

More than two centuries later, the meaning of the Constitution’s “advice and consent” clause still remains the subject of great dispute, over both rules and substance. What follows represents one person’s up-close observations of some of these confirmation debates.

In early 2003 the Senate leadership signaled its commitment to the Roberts nomination by putting him on the first Senate Judiciary Committee hearing of 2003. Roberts was one of three at the time

In the 15 years prior to that hearing, there had never been a confirmation hearing for three controversial appellate nominees at one time. That was because there was a long-standing written agreement between Senators Thurmond and Biden and the majority and minority leaders to allow only one controversial nominee per hearing that had been in effect since 1986. In January 2003, the leadership scheduled Roberts for a hearing along with two other controversial appellate nominees, Jeffrey Sutton and Carolyn Kuhl. Sutton was considered the premier advocate in Supreme Court cases to prevent federal courts from hearing discrimination claims against state employers, a position he advanced as the head of the Federalist Society’s federalism practice group. Judge Kuhl, Roberts’ former colleague at the epicenter of the Bob Jones case, had become a state court judge w ho had taken some heat for her decisions including one regarding the scope of privacy rights for breast cancer patients.

Several senators protested this scheduling, noting the long-standing agreement and the desire to have sufficient time to question each nominee. Democratic senators decided to focus on the three appellate nominees on the hearing one at a time, starting with Sutton, and asked in writing for additional hearings for the other two. The request was rebuffed.

The day Roberts was reported out of the Judiciary Committee, every member in the minority stood together in opposing a vote. But Roberts’ nomination was reported out of the Committee, despite the language in Rule IV of that Committee, honored for its entire 24 year history, stating that to force a vote on any matter at least one member of the minority party must agree to a vote. There was no such agreement on Roberts.

In the discussions that followed the reporting out of the Roberts nomination, the Senate leadership agreed to reinstate Rule IV and give Roberts a second hearing, and the minority agreed to promise him a vote, even though the prior president’s last two nominees to the DC circuit (Allen Snyder, a big firm partner who clerked for Rehnquist, and Elena Kagan, a White House advisor who would go on to be the first woman to serve as the Dean of Harvard Law School) had not gotten a vote in committee or on the Senate floor.

At the second Roberts hearing, Senators noted that the rule was reinstated, but what garnered press coverage was the heated exchange between Chairman Hatch and Senator Schumer about the questions Roberts was being asked.

With the agreement, and with other judicial nominees being filibustered, Roberts was given a confirmation vote. He did not get a recorded vote, however, due to his controversial work in the Reagan and first Bush administrations. He was approved by a unanimous consent agreement where the majority and minority leader agree to approve a nomination or bill without a vote.

Almost two years after Roberts’ confirmation, he was tapped by President Bush for the Supreme Court. The day it happened I received several calls from former colleagues reminding me that I had predicted that Roberts would be elevated to the Supreme Court, a prediction I had not forgotten.

second of three entries

Roberts’ work, intellect and devotion to the Reagan agenda won him a post at the White House Counsel’s Office, a plum job that combines high profile with more mundane ones. His memos from that time reveal both a keen intellect and a zeal for some pretty controversial policy positions. After a stint in private practice, he reunited with Ken Starr in the Justice Department’s Solicitor General office, arguing cases before the Supreme Court. As the political (versus civil service) deputy in that office he had a substantial influence on the cases that would or would not be appealed to advance the first Bush Administration’s legal agenda. It was from that perch that he was first picked out for an opening on the circuit court.

As the press and pundits review Judge Roberts’ performance and answers in his nomination hearings this week, it might be helpful to remember his first nomination.

In fact, he did not fare well in that first nomination in 1992. Despite his experience arguing cases before the Supreme Court, the ABA did not find him “Well Qualified” for a position on the DC Circuit. (While members of the ABA committee did find him to be qualified for a lower court position, it did not give him the Well Qualified rating that he was given this year when nominated to the highest court in the land.) Progress on his nomination was also delayed by a scrum between the White House and Senate following the battle over the nomination of Clarence Thomas to the Supreme Court, when the first Bush administration tried to limit the Senate staff’s access to FBI background investigations of nominees.

Nevertheless, Chairman Biden pushed through more than 60 judicial nominees to confirmation in the presidential election year of 1992. Although Senator Biden got more Bush judges confirmed in 1992 than in the three previous years of the administration, John Roberts was not among them. His views and contributions had won him a nomination to the court by a White House whose ideological agenda for the federal courts was documented in memo after memo, but he did not win confirmation. After Bush’s defeat, Roberts left public service and joined Hogan and Hartson as a litigator.

During the eight years of the Clinton presidency, Roberts did not influence policies at the White House or Justice Department. And, while he gave few speeches on any political issues during this period in private practice, he remained connected to party leaders and even worked on the Bush recount fight in the 2000 election. When George W. Bush won his own Supreme Court case and became president, Roberts was still at the top of the Republican list for the DC Circuit, which is considered the feeder court for the Supreme Court. (Scalia, Thomas, and Ginsburg all served there.)

Roberts was one of the first eleven judicial nominations made by President Bush on May 9, 2001. Shortly afterward, the Senate changed hands. When Congress recessed at the end of 2002, Roberts remained unconfirmed. He was considered controversial, and a potential pick for the Supreme Court. And, as in 1992, there were other nominees in the queue who were either easier to evaluate or had been promised hearings in response to requests by Senators. So Roberts failed in his second judicial nomination to be an appellate judge.

coming next: Roberts Revisited

first of three entries

After a summer of movie prequels, this fall brings us the final chapter of John Roberts’ ambition to serve on the United States Supreme Court. But long before the nation knew Roberts’ name, he was subject to not just one but two failed nominations to our appellate courts. The fact that he was rebuffed for lower court positions twice before may be news to many and could be cause for pause to some.

Roberts, whose pedigree of ivy league schools and prestigious clerkships is widely known now, was first nominated to a lifetime position as a federal judge hearing appeals over a decade ago.

He was quite young but, as presidential advisor Brad Berenson said recently, Roberts had proven his mettle in political perches in the Reagan and first Bush administrations. Berenson went on to say that he had no concerns that Roberts’ views would waiver on the Supreme Court, since his views had been strengthened and “tempered” by the political fires of Washington, where partisanship has only grown with the years. Thus, judge pickers like Berenson may not be worried that a Justice Roberts would slide to the middle on the court like other nominees whose commitments were untested in Washington.

Some might say Berenson’s candid remarks to Ted Koppel the night of the nomination were both astute and unintentionally revealing: one can certainly see a marked difference among the seven Republican appointees to the nine-member Rehnquist court, with those justices who served as top policy advisors or policy makers in Washington ruling in a more consistently deferential way on cases involving the Republican agenda than those whose careers were made outside the beltway.

Rehnquist served as Assistant Attorney General at the Justice Department in the Nixon Administration, Scalia held that same post in the Reagan Administration, and Thomas hailed from Reagan’s embattled Equal Employment Opportunity Commission, while O’Connor served in the Arizona legislature, Kennedy practiced law in San Francisco, Souter served on the New Hampshire Supreme Court, and Stevens was a registered Republican who had worked in Washington for a few years after law school but returned home to Chicago and became widely regarded as a judge’s judge so fair-minded was his reputation.

In any event, John Roberts was nominated to the DC Circuit by the first President Bush in the early 1990s. Due to his lack of judicial experience the then-more-rigorous ABA did not give him the high ABA rating it would most likely bestow today. Roberts had cut his teeth in the Justice Department working with Ken Starr, who was his senior by a few years and was also nominated to the DC Circuit at a very young age. He would also later be on the short list for the Supreme Court during the first Bush administration, for the openings that eventually passed to President Clinton. Clinton chose Ginsburg and Breyer, rather than Starr and Hatch who had been at the top of the list for Bush. Starr is now more widely known as the prosecutor who wrote the report on the Monica Lewinsky scandal.

The ACLU’s Roberts memo describes some of his early work with Starr and another later George W. Bush pick for the appellate courts, Carolyn Kuhl. Suffice it to say that Starr, Roberts, and Kuhl were young stars in the Reagan administration, wielding tremendous influence over national policy, as illustrated by the debacle of the Reagan administration’s decision to give Bob Jones University tax exempt status despite its overt policies of racial discrimination illustrates. (That ill-advised decision, counseled by these young policymakers, was rebuked by both the Supreme Court and Congress.)

coming tomorrow: the first Roberts nomination …