Democrats Finally Seem to Accept the Truth About Specter

When the opportunistic Specter switched parties, Democrats cheered the move -- even though a few dissenting voices questioned whether his decision would advance the party's interests. Yesterday, Senate Democrats denied Specter seniority and relegated him to junior status on the Senate Appropriations and Judiciary Committees. The Democrats might revisit the matter after the midterm elections in 2010.

Specter recently caused a flap when he implicitly supported Republican Norm Coleman's exhaustive efforts to contest the extremely close Minnesota Senate race. During an interview with the New York Times, Specter was asked to comment on the fact that his decision to become a Democrat means that "there are no more Jewish Republicans in the Senate." In response, Specter said: "There’s still time for the Minnesota courts to do justice and declare Norm Coleman the winner." Many liberal blogs went into a complete lather. Specter has since stated that he "misspoke."

Specter also caused a near-meltdown during an interview with Meet the Press in which he twice denied ever saying that he would be a "loyal Democrat." He then proceeded to state his disagreement with key components of health reform supported by many Democrats.

Looks like the shiny moment of his defection has worn off already.

Good News: Government Responds to the TARP Payback Schemes

Last money, several banks, including Goldman Sachs and JP Morgan Chase, vowed publicly to pay their TARP loans and to make an early departure from the controversial program. Those banks, however, hold very substantial loan guarantees from the federal government through a program administered by FDIC. Under the FDIC program, the federal government guarantees loans issued to participating banks by private lenders. If the banks default, then the government repays the debt. TARP loans, by contrast, come directly from the government.

Because the federal government guarantees the private loans, they carry less risk than other private loans. Accordingly, banks that participate in the program receive lower interest rates than they would have received on the open market.

If banks pay back TARP loans while they still hold billions of dollars in loans backed by the federal government, then the government-secured loans would essentially help finance the banks' early departure from TARP. The situation is quite controversial because TARP, unlike the FDIC program, carries restrictions related to executive compensation. According to the Associated Press, however, the government will try to close the loophole:

A government official said Tuesday evening that banks eager to return infusions from the $700 billion Troubled Asset Relief Program will have to demonstrate that they can operate without debt guarantees provided by the Federal Deposit Insurance Corp. The FDIC program allows financial institutions to borrow money at lower costs. . . .

"It throws a hurdle as far as the banks repaying TARP," said Scott Talbott, a senior lobbyist for the Financial Services Roundtable, a bank industry group.

Kudos.

Related Readings on Dissenting Justice:

Startling Discovery: Banks Want Federal Financial Assistance Without Strings Attached

Surprise, Surprise: Potential Participants in Toxic Assets Plan Ask Government to Stay Away From Executive Compensation

Talking Points on Souter Replacement?

Democrats in the Senate seem to have uniform beliefs about the person President Obama should nominate to replace retiring Supreme Court Justice David Souter. Senator Patrick Leahy believes that President Obama should pick someone "from outside the judicial monastery, somebody who has had some real-life experience, not just as a judge . . ."

Similarly, Senator Arlen Specter has announced that:

I would like to see somebody with broader experience . . . We have a very diverse country. We need more people to express a woman's point of view or a minority point of view, Hispanic or African American . . . somebody who's done something more than wear a black robe for most of their lives.

Senator Harry Reid "hopes that Obama goes outside the existing legal system and finds a former governor or senator, or someone who has 'real life experiences.'"

And Obama himself has said:

I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook . . . It's also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation.

Senator Orrin Hatch, who like Specter and Leahy sits on the Senate Judiciary Committee, says that Obama will probably make the selection very quickly -- perhaps even before the end of this week. If President Obama will soon make his announcement, it is very likely that all of the Senate chatter about "life experience" represents talking points designed to create a narrative about the nominee. Stay tuned.

Cynical Outtake
The comments from these guys, espousing the virtues of nontraditional candidates, are somewhat amusing. Leahy, for example, has spent nearly 1/2 of his life in the Senate, first winning election in 1974.

Specter was first elected to the Senate in 1980. He has served in the Senate longer than any other person in Pennsylvania history. He is also the fifth-oldest person in the Senate. Furthermore, he recently switched parties in order to maximize the possibility that he will keep his job.

Reid began his career in Nevada politics in 1967. He became of member of the House of Representatives in 1982, and he became a Senator in 1987, a position he continues to hold. If voters applied the standards that these Senators want Obama to use when selecting a replacement for Souter, it is unclear whether either them would remain Senators.

Hatchet Job: Jeffrey Rosen's Utterly Bankrupt Analysis of Judge Sonia Sotomayor

[New and Convenient Sotomayor Link Page: Sonia Sotomayor on Dissenting Justice]

In an article published in the New Republic, Jeffrey Rosen lays out "The Case Against Sotomayor." It is a very weak case.

Rosen, a law professor at George Washington University, concedes that Sotomayor, who grew up in a low-income single-parent household in the South Bronx, has a great biography. Despite her background, Sotomayor, a Puerto Rican woman, attended Princeton University and Yale Law School. She later became the youngest federal judge in the Southern District of New York at the time of her appointment. Rosen also concedes that Sotomayor has glowing support from other judges in the Second Circuit and from her former law clerks.

Rather than analyzing traditional data on judges (i.e., bar association reports), Rosen builds his "case" exclusively by holding discussions with persons who never worked for Sotomayor. Specifically, he "interviewed" former law clerks for other Second Circuit judges and former prosecutors.

Rosen's Biased Sample
It is unclear why Rosen only interviewed prosecutors and former clerks for other judges, rather than defense attorneys, litigators, and Sotomayor's own former clerks. But it does not take a degree in statistics to realize that Rosen's sample is extremely biased and limited. Although prosecutors do not hold uniform viewpoints, given the breadth of attorneys who have practiced before Sotomayor, Rosen's exclusive reliance on prosecutors is inexcusable.

Furthermore, clerks for other judges do not have the best ability to evaluate Sotomayor. In fact, the use of clerks to determine whether a judge should receive a Supreme Court nomination is extremely problematic. Most clerks have just graduated from law school, have never tried a case or practiced law, and do not have sufficient experience or knowledge of the law to make an informed assessment of a judge. Given these inherent weaknesses associated with a law clerk's opinion of a judge, Rosen's reliance upon law clerks who never worked for Sotomayor is a rather crude and unhelpful way of evaluating her qualifications.

The American Bar Association uses a much more expansive and generally accepted analysis (including talks with a broad cross-section of lawyers and judges) to evaluate judicial performance. After President Clinton nominated Sotomayor to the Second Circuit in 1997, the ABA reported that a "substantial majority" of respondents ranked her as "well qualified," while a "minority" found her "qualified."

Rosen Fails to Analyze Sotomayor's Rulings
Given Rosen's background in law, it might surprise many readers of his essay that Professor Rosen does not offer his own independent analysis of Sotomayor's rulings to support his condemnation of her candidacy. Instead, Rosen admits his own ignorance regarding Sotomayor's jurisprudence and the limits of the group of persons he interviewed:

I haven't read enough of Sotomayor's opinions to have a confident sense of them, nor have I talked to enough of Sotomayor's detractors and supporters, to get a fully balanced picture of her strengths. It's possible that the former clerks and former prosecutors I talked to have an incomplete picture of her abilities.

Despite his admitted lack of knowledge regarding Sotomayor's judicial record, Rosen urges President Obama to "satisfy himself that he has a complete picture before taking a gamble." Rosen has described Sotomayor as a "gamble" even though he admits that he has incomplete knowledge of her record as a judge. Reaching a conclusion about a person without knowledge or with incomplete knowledge of the individual's qualifications seems like a standard example of prejudice, but readers can draw their own conclusions about Rosen's motivation.

While Rosen does not independently analyze Sotomayor's jurisprudence, he mentions two cases that supposedly raise questions about her capabilities. First, he cites to a footnote in an opinion written by Judge Ralph Winter, a senior judge on the Second Circuit, which discusses a case that Sotomayor authored. Rosen says that the footnote is "unusual" and that Judge Winter finds that Sotomayor's opinion "might have inadvertently misstated the law in a way that misled litigants."

Rosen's assertion is patently untrue, and it grossly distorts the footnote's language. Winter's footnote is not "unusual." Instead, the footnote chides lawyers for misreading Sotomayor's ruling and for trying to expand the case beyond its holding:

[The party's] reading of Samaria [the opinion authored by Sotomayor] would attribute to it the overruling of a long-standing line of cases in this circuit. . . However, Samaria does not purport to address the validity of those cases in any way. Samaria's discussion of conscious avoidance related only to a sufficiency issue, and the panel thus made it clear that, on the evidence before it, the requisite level of intent could not have been found even on a conscious avoidance theory (emphasis added).

Rosen has completely misrepresented Winter's footnote in order to question Sotomayor's competence as a judge, when the footnote actually criticizes the attorney's misplaced reliance upon the opinion she authored. The ruling at issue was unanimously decided.

Rosen also mentions an affirmative action case, Ricci v. DeStefano, that is currently pending before the Supreme Court. Again, Rosen offers no independent analysis of the case. Instead, he describes it as "controversial." He also says that dissenting judge Jose Cabranes criticized the majority for not addressing the constitutional issues raised by the plaintiffs. But Sotomayor clearly did not author the "per curiam" ruling. Furthermore, the full Second Circuit voted 7-6 not to hear reargument of the case, which suggests that it was not a gross misstatement of the law or a misstatement at all.

Rosen has written a very weak case against Sotomayor. Hopefully, President Obama will not take a gamble and credit his bankrupt analysis while evaluating candidates to fill the vacancy created by Justice Souter's retirement.

[Note: Rosen has responded to some of his critics, and I have responded to Rosen's new arguments. Also, to what extent do gender and race stereotypes inform this debate?]

[Note: This article was edited to reflect that Sotomayor became the youngest judge in the Southern District of New York at the time of her appointment and that Judge Winter maintains "senior" status.]

Some citations to this article:

New York Times/Opinionator/Eric Etheridge: Supreme Court Smear

ABC News/Political Punch/Jake Tapper: Blowback in the SCOTUS Wars

Salon/Glenn Greenwald: Jeffrey Rosen, TNR and the Anonymous Smears Against Sonia Sotomayor

The New Yorker: Close Read: Insults and Impunity

Media Matters: TNR's Rosen Misrepresented Footnote in Making Purported "Case Against Sotomayor"

Recent Dissenting Justice articles regarding the Supreme Court:

Earth to Orrin Hatch: Even Conservative Judges Make Policy!

Talking Points on Souter Replacement?

Is Justice Scalia an "Irresponsible" Judge?

Why Is Congress Debating the BCS System?

There are so many critical issues that Congress could debate. There are pressing concerns that the House Committee on Commerce, Trade and Consumer Protection could analyze. The NCAA football championship system is NOT one of those issues.

Representative Joe L. Barton of Texas apparently cannot get over the fact that the BCS picked Oklahoma rather than Texas to play in the 2009 BCS championship game. In response, he is proposing "big government" policies that seem utterly inappropriate for a Texas Republican.

Barton says that the BCS system is "like communism" because it is not "fixable." So, in order to punish the "communist"football bowl system, Barton is sponsoring legislation "that would prohibit the NCAA from advertising its national champion in football as such unless it was produced via a playoff system." Ah, the freedom of capitalism.

Barton challenged BCS coordinator John Swofford to implement a playoff system. After Swofford stated that the BCS had not discussed his proposed legislation, Barton offered a heavy handed response:

Well, I would encourage you to start discussing it, because I think there is better than a 50 percent chance that if we don't see some action in the next two months on a voluntary switch to a playoff system, that you will see this bill move . . . So it needs to be something that you need to start discussing.

This is a colossal waste of time and money. But I guess it comes with the territory.

WhiteHouse.Gov Gets GLBT Makeover

GLBT voters are bedrock Democrats. Accordingly, all of the Democratic presidential candidates expressed their passionate support for gay rights -- with the glaring exception of same-sex marriage. WhiteHouse.Gov contains a civil rights page that lists many areas of interest, including gay rights. But as several bloggers have observed, the webpage was recently overhauled, and the changes are raising eyebrows.

Tinkering With DOMA and DADT Language
The amended version of the webpage omits language stating that the president wants to see DOMA and DADT repealed. While the DOMA language disappeared altogether, the new DADT passage states that the president supports "changing Don’t Ask Don’t Tell in a sensible way that strengthens our armed forces and our national security" (italics added).

After receiving several complaints, the web personnel have changed the site to reinstate the "repeal" of DADT language, although it awkwardly states that the president wants to repeal the statute in a "sensible" way. Nevertheless, the DOMA language remains missing.

Signaling a Policy Shift?
Coincidentally, the administration currently faces lawsuits that challenge the constitutionality of DOMA and DADT. After receiving extensions to file responses to the cases, the time is slowly running out for the Obama administration. According to Professor Nan Hunter's blog, the government's replies are due next week. It is difficult to believe that changes in WhiteHouse.Gov language concerning these two issues do not indicate the position the government will soon take in the lawsuits.

The government, however, has stated that it is simply editing the pages to transition from "campaign" to "governance" mode. Because governance includes defending the government against lawsuits, I suppose the changes could reflect policy after all.

Kinder, Gentler Military Tribunals? You Betcha. . . .

MAJOR UPDATE: THEY'RE BAAACK. . . .

Is President Obama planning to use highly criticized military courts to prosecute detainees at Guantanamo Bay? According to a New York Times article, he is.

Civil libertarians within Obama's liberal base passionately opposed the Bush administration's use of military tribunals to prosecute terrorism suspects. Also, the Supreme Court has ruled that Bush's commissions failed to offer sufficient procedural protections for defendants.

Obama campaigned against the use of military tribunals and boasted of his vote against the Military Commissions Act of 2006, which attempted to divest certain Guantanamo Bay detainees of habeas corpus rights. The Supreme Court overruled those portions of the legislation in 2008 and specifically held that the alternative process for determining whether the government had adequate grounds to detain suspects was constitutionally defective.

Kinder, Gentler Military Tribunals?
Perhaps the Obama administration believes that it can clean up the military courts. But if he ultimately decides to opt for military tribunals, this would probably reflect a bare desire to win difficult terrorism cases and to avoid political fallout from holding the trials in federal courts.

A lot of the evidence against the terrorism suspects includes hearsay and statements extracted through torture or other coercive techniques. Federal rules of evidence would not permit the use of such materials, which would make prosecution difficult [Translation: would require the government to prove its case "beyond a reasonable doubt"].

Furthermore, the prosecution of terrorism suspects in federal courts would generate another round of criticism from conservatives and moderates who oppose the idea. Although federal courts have prosecuted numerous terrorism suspects in the past (with high conviction rates), the issue remains a political lightning rod.

Obama's Biggest Contradictions Occur in His Anti-Terrorism Policies
In terms of disappointing his base, Obama's biggest contradictions have occurred in his anti-terrorism policies. Bush's practices in this area generated massive political heat from liberals both domestically and abroad. Obama's election victories (especially in the Democratic primaries) occurred in large part because the Left believed that he would dramatically alter the state of affairs in this area.

Although Obama has taken formal steps that retreat from Bush's policies, the substantive differences are too small to measure. During his first week in office, Obama issued executive orders that call for the closure of Guantanamo Bay within a year, the cessation of torture and the termination of CIA "black sites," or secret prison facilities where individuals face prolonged detention under poor conditions that likely involve torture.

But Obama has embraced many of the same positions that liberals and Obama himself criticized. For example:

* Obama and members of his administration have embraced the use of rendition. Many of Obama's most ardent defenders blasted progressives who criticized Obama on rendition as jumping the gun. Today, their arguments look even more problematic than in the past.

* Obama has invoked the maligned "state secrets" defense as a complete bar to lawsuits challenging potential human rights and constitutional law violations.

* Obama has argued that detainees at Bagram Air Force Base in Afghanistan do not qualify for habeas corpus rights, even though many of the detainees at the facility were not captured in the war or in Afghanistan.

* Even though it no longer uses the phrase "enemy combatants," the Obama administration has taken the position that the government can indefinitely detain individuals, whether or not they engaged in torture and whether or not they fought the United States on the "battlefield." This logic combined with the denial of habeas to detainees in Afghanistan could make Bagram the functional equivalent of Guantanamo Bay.

If the New York Times article is accurate, then the use of military tribunals issue will join the list of policies that Obama has endorsed, despite the loud liberal criticism that Bush received when he did the same things. It remains unclear, however, whether these contradictions will erode any of Obama's political support. Despite his blatant departure from some of the most important progressive issues that defined his campaign, liberals remain quite pleased with Obama's performance.

SEE RELATED COVERAGE:

They're Baaack. . . .

Glenn Greenwald has also covered many of these issues. He is one of the few progressives who has consistently adhered to progressive politics during the Obama-era.