Sunday, May 31, 2009

Considered Forthwith: Senate Judiciary Committee

Welcome to the tenth installment of "Considered Forthwith."

This weekly series looks at the various committees in the House and the Senate. Committees are the workshops of our democracy. This is where bills are considered, revised, and occasionally advance for consideration by the House and Senate. Most committees also have the authority to exercise oversight of related executive branch agencies. If you want to read previous dairies in the series, search using the "forthwith" tag or use the link on my blogroll. I welcome criticisms and corrections in the comments.

This week I will look at the Senate Committee on the Judiciary. The committee's jurisdiction is very similar to the House Judiciary Committee (the Forthwith diary is posted here). There is one big difference, though. The Senate committee gets to hold hearings on judicial confirmations, so this seems timely.

Additionally, the committee is scheduled to hold a hearing on an important gay rights/immigration bill (see Uniting American Families Act below).

Note: last week I mentioned that the Senate Committee on Energy and Natural Resources will likely get the Cap and Trade bill. It turns out that the Environment and Public Works Committee has jurisdiction on global warming legislation. However, there is a an argument for sending it to either committee. This might wind up as a multiple referral.

Here are the members of the Senate Judiciary Committee.

Democrats: Patrick Leahy, Chairman, Vermont; Herb Kohl, Wisconsin; Dianne Feinstein, California; Russ Feingold, Wisconsin; Chuck Schumer, New York; Dick Durbin, Illinois; Ben Cardin, Maryland; Ron Wyden, Oregon; Sheldon Whitehouse, Rhode Island; Amy Klobuchar, Minnesota; Ted Kaufman, Delaware; Arlen Specter, Pennsylvania

Republicans: Jeff Sessions, Ranking Member, Alabama; Orrin Hatch, Utah; Chuck Grassley, Iowa; Jon Kyl, Arizona; Lindsey Graham, South Carolina; John Cornyn, Texas; Tom Coburn, Oklahoma

Jefferson Beauregard Sessions III (hey, if the wingnuts insist on using President Obama's middle name) is only the ranking member temporarily. When the 112th Congress convenes, Grassley will take over the ranking member post (assuming he gets reelected) or the chairmanship if the Democrats manage to lose a net of 11 Senate seats. In 2012, the plan is for Sessions to take the ranking member spot on the Budget Committee while Grassley will give up his spot on the Finance Committee to take over on the Judiciary Committee. If you haven't guessed, Senators only get to chair or serve as ranking member one committee at a time. Additionally, there are term limits on the seats and the leadership position assignments are typically based on seniority. CQ Politics had the full explanation here.


The Senate Judiciary Committee's jurisdiction is nearly identical to the House Judiciary Committee's jurisdiction. I could not find an explicit statement of the committee's jurisdiction on their website, so this one is from the Center for Responsive Politics (better known as

Apportionment of Representatives; bankruptcy, mutiny, espionage, and counterfeiting, civil liberties; constitutional amendments; Federal courts and judges; Government information; holidays and celebrations; immigration and naturalization; interstate compacts generally; judicial proceedings, civil and criminal, generally; local courts in the territories and possessions; claims against the United States; national penitentiaries; Patent Office; patents, copyrights, and trademarks; protection of trade and commerce against unlawful restraints and monopolies; revision and codification of the statutes of the United States; and state and territorial boundary lines.

I listed the House Judiciary Committee's jurisdiction in this diary. This diary will focus on two main differences: apportionment of representatives and nomination hearings. Under the Constitution, the Senate is solely responsible for approving appointments under the advise and consent clause.

Nomination Hearings

Right now, we are all excited Sonia Sotomayor's upcoming confirmation hearing. Obviously, this will be important, but the committee deals with a lot of nominations every year. Specifically, there are 875 federal judicial positions nationwide that are subject to Senate confirmation. These are lifetime appointments. In addition, the committee holds hearings for a number of top positions in the Executive Branch.

Granted, the SCOTUS nominations are important. However, the publicity is overblown in comparison to the other nominations. During the Bush era, many of the judges who were appointed to the federal bench were as wingnutty as the President himself and that will probably be his legacy. Consider this reporting from the LA Times:

"Some of the appeals courts will be quite far to the right for a generation to come. So why is the Senate rushing to confirm as many of these terrible nominees as possible?" asked Simon Heller, a lawyer for the Alliance for Justice, a liberal advocacy group.

He gives the Republicans more credit than the Democrats for adhering to the party line. "Republican senators have voted in lock step to confirm every judge that Bush has nominated. The Democrats have often broken ranks," he said.

Conservatives tend to agree on that point. They say the ideological makeup of the courts has grown into a major issue on the right, and it has brought Republicans together, whether they are social conservatives, economic conservatives or small-government libertarians.

The important point to remember is that the Supreme Court typically considers less than 100 of the thousands of cases that they receive each year. (Incidentally, the court clerks have a large influence on which cases are even considered.) This means that the rulings of the District Appeals Courts are often the final word on questions of law.

On the other hand, this guy was a Bush nominee, too.

The next section will examine the nomination processes for judicial and executive appointments. These will be brief descriptions, but full rundowns are available here and here. This nomination process is part of the "checks and balances" and "separation of powers" that your high school civics teacher talked about.

The process for judicial nominations: The committee handles appointments to the U.S. Supreme Court, the U.S. Courts of Appeals, U.S. District Courts, and the Court of International Trade.

The first step is for the president (in consultation with his/her advisers) to name a nominee. This is also part of the separation of powers. Congress cannot pick their preferred nominee; they can only approve or deny the president's choice. The nominations are then automatically referred to the Senate Judiciary Committee.

The next step is for the committee to collect information about the nominee. The nominee is expected to submit answers to a questionnaire, which is not unlike an indepth resume. The questionnaire that Sotomayor must fill out is here (pdf link).

The committee also receives ratings from the American Bar Association's Standing Committee on the Federal Judiciary. These ratings evaluate a nominee's integrity, competence, and temperament. They say nothing about political leanings or philosophy.

Finally, the Senators from the nominee's home state receive blue slips. The Senators use these blue slips to indicate their support for or opposition to holding a hearing on a nominee. This is part of the "Senatorial Courtesy" tradition. The committee's website indicates that "the return of a positive "blue slip" is not a commitment by either home state Senator to support or oppose, a pending nomination." However, a lack of support from one's own Senator can seriously undermine a nominee's appointment to a lower court. The point is that the committee cannot possibly know everything about every judge in the country and Senate is willing to defer to the opinion of the members who would know the local judges. Indeed:

Throughout the nation's history, appointments to judicial posts below the Supreme Court have generated little controversy. This has been due in part to the large number of such appointments and to the tradition of "senatorial courtesy," which defers to the preferences of senators belonging to the president's party who represent a particular nominee's home state.

Blue slips and Senatorial Courtesy are not a consideration with a Supreme Court nomination since the high court has jurisdiction over the entire country and not just a part of a state or a few states.

The next step -- however unofficial -- is for the media, special interest groups, other Senators, and now the blogoshere to go bat shit crazy about the nominee. Perceived opponents scramble to find that one nugget of bad information that will sink the nominee while supporters scream that the attacks are untrue and/or irrelevant. This phase applies to SCOTUS nominees only; other nominees are usually allowed to fly under the radar.

Next is the actual hearing, if requested, before the full committee. For obvious reasons, hearings are always held for Supreme Court nominees. This is the real power of the committee and the advantage of seniority. The character of the questioning influences public opinion and more importantly the opinions of Senators. For example, between the pre-hearing framing and the intense questioning, Robert Bork never really had a chance at confirmation. It's probably worth mentioning that Bork on the court would be a disaster for Progressives, but there's no arguing that the term "borked" has become a term for character assassination due to the intense questioning he went through. Another example is the Clarance Thomas hearings. Anita Hill's allegations that Thomas sexually harassed her did not stop the nomination, but it did start the national conversation about sexual harassment.

As for the seniority issue, members of the committee question nominees and other witnesses in order of seniority, alternating between the parties. That means Arlen Specter gets to go dead last. Had he not switched parties, we would have gone second. Basically, the Senator with the least seniority is stuck rehashing questions that have already been asked or asking the nominee his or her cat's name. Even if the most junior member has an important question to pose, the media has already written their stories and passed judgment on the nominee based on earlier interrogation.

After the hearing, members may submit follow up questions. These followups fly under the radar unless a member decides to make a big deal about it. The committee then votes on the nomination. If the committee votes in favor of the nomination, it is reported to the full Senate for a final vote. Of course, we are aware that the GOP is confused whether or not it is a good idea to filibuster a Supreme Court nominee.

The Supreme Court nomination hearings are typically slated for early to mid September after Congress reconvenes after Labor Day so that the nomination is confirmed before the court's start date of Oct. 1.

Executive nominations: The process for Executive Branch nominations is similar procedurally to those for the Judicial Branch. The difference is that there are no blue slips, questionnaires, or ratings from private organizations. Some of the key posts the committee considers include attorney general; assistant secretary of Immigration and Customs Enforcement and director of Citizenship and Immigration Service within Homeland Security; the directors of FBI, ATF, U.S. Marshalls, DEA; and 93 U.S. Attorneys and 94 U.S. Marshals. Here is the full list.

Apportionment of Representatives

This is one of those things that literally only comes up once a decade. Following the decennial census the 435 seats in the House are divided among the states so that each member of the House represents approximately the same number of people. With population movements, Northeastern states have been losing House seats while the South and Southwest have been gaining seats. This is typically a fairly mechanical process, but this is the committee that gets the final say.

Of course, there is the possibility that the committee may have to make some close calls. For example, if Utah and California have an equal claim to another Representative, a Democratically controlled committee would probably be inclined to award the seat to reliably Blue California. It is later up to the states to gerrymander draw the new congressional districts.

Uniting American Families Act

This is an important bill that falls under the Judicial Committee's jurisdiction. On Wednesday June 3 at 10 a.m., the full committee will hold a hearing on the Uniting American Families Act. Under current U.S. law, American citizens may sponsor their spouses for citizenship. Same sex couples do not have the same right. The Uniting American Families Act would remedy this. This is one of things that we should publicize and contact our Senators about. Of course, this is also an opportunity for the GOP to pull the ever elusive homophobia/xenophobia two-fer. I'm going to tune in.


There are seven subcommittees under the full committee. Unlike many other committees, the Judiciary Committee does not have a specific oversight subcommittee. Instead, the various committees conduct oversight within their own jurisdictions. Here are the subcommittee leaders and jurisdictions.

Administrative Oversight and the Courts: Sheldon Whitehouse is the chair and Jeff Sessions is the ranking member. The jurisdiction is:

(1) Court administration and management; (2) Judicial rules and procedures; (3) Creation of new courts and judgeships; (4) Bankruptcy; (5) Administrative practices and procedures; (6) Legal reform and liability issues; (7) Oversight of the Department of Justice grant programs, as well as government waste and fraud; (8) Private relief bills other than immigration; (9) Oversight of the Foreign Claims Settlement Commission.

Regarding point 8, a private bill is legislation that only applies to one person or a small group of people. For example, if Congress decides that you (and only you) are allowed to grow marijuana, Congress would pass a private bill to that effect.

Antitrust, Competition Policy and Consumer Rights: Herb Kohl is the chair and Orrin Hatch is the ranking member. Their jurisdiction is:

(1) Oversight of antitrust law and competition policy, including the Sherman, Clayton and Federal Trade Commission Acts; (2) Oversight of antitrust enforcement and competition policy at the Justice Department; (3) Oversight of antitrust enforcement and competition policy at the Federal Trade Commission; (4) Oversight of competition policy at other federal agencies.

The Constitution: Russ Feingold is the chair and Tom "I never met a hold I didn't like" Coburn is the ranking member. Their jurisdiction is:

(1) Constitutional amendments; (2) Enforcement and protection of constitutional rights; (3) Statutory guarantees of civil rights and civil liberties; (4) Separation of powers; (5) Federal-State relations; (6) Interstate compacts.

Crime and Drugs: Arlen Specter is the chair and Lindsey Graham is the ranking member. Their jurisdiction is:

(1) Oversight of the Department of Justice's (a) Criminal Division, (b) Drug Enforcement Administration, (c) Executive Office for U.S. Attorneys, (d) Office on Violence Against Women, (e) U.S. Marshals Service, (f) Community Oriented Policing Services and related law enforcement grants, (g) Bureau of Prisons, (h) Office of the Pardon Attorney, (i) U.S. Parole Commission, (j) Federal Bureau of Investigation, and (k) Bureau of Alcohol, Tobacco, Firearms, and Explosives, as it relates to crime or drug policy; (2) Oversight of the U.S. Sentencing Commission; (3) Youth violence and directly related issues; (4) Federal programs under the Juvenile Justice and Delinquency Prevention Act of 1974, as amended (including the Runaway and Homeless Youth Act); (5) Criminal justice and victims' rights policy; (6) Oversight of the Office of National Drug Control Policy; (7) Oversight of the U.S. Secret Service; (8) Corrections, rehabilitation, reentry and other detention-related policy; and (9) Parole and prohibition policy.

Human Rights and the Law: Richard Durbin is the chair and Tom Coburn is the ranking member. Their jurisdiction is:

(1) Human rights laws and policies; (2) Enforcement and implementation of human rights laws; (3) Judicial proceedings regarding human rights laws; and (4) Judicial and executive branch interpretations of human rights laws.

Immigration, Refugees and Border Security: Charles Shumer is the chair and John Cornyn is the ranking member. Their jurisdiction is:

(1) Immigration, citizenship, and refugee laws; (2) Oversight of the immigration functions of the Department of Homeland Security, including U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, and Ombudsman Citizenship and Immigration Services; (3) Oversight of the immigration-related functions of the Department of Justice, the Department of State, the Department of Health and Human Services Office of Refugee Resettlement, and the Department of Labor; (4) Oversight of international migration, internally displaced persons, and refugee laws and policy; and (5) Private immigration relief bills.

Yes, these would be the border fence people.

Terrorism and Homeland Security: Ben Cardin is the chair and Jon Kyl is the ranking member. Their jurisdiction is:

(1) Oversight of anti-terrorism enforcement and policy; (2) Oversight of Department of Homeland Security functions as they relate to anti-terrorism enforcement and policy; (3) Oversight of State Department consular operations as they relate to anti-terrorism enforcement and policy; (4) Oversight of encryption policies and export licensing; and (5) Oversight of espionage laws and their enforcement.

Interestingly, the House established a separate Homeland Security Committee while the Senate handles those issues within a subcommittee.

For more information about the history of the committee, the past subcommittees (for example, the now defunct Youth Violence Subcommittee) can be found here. A history of the full committee since its founding in 1816 is available here.

A few highlights: This was the committee that debated the Missouri Compromise, handled the emergency war powers during the Civil War, and reported the Sherman Antitrust Act. The Committee, then chaired by Dixiecrat James Easton of Mississippi refused to schedule hearings on the Civil Rights Act of 1957. This prompted the Senate to bypass the committee system and bring the bill directly to the floor for debate and a vote. The committee has only held public hearings on Supreme Court nominees since 1955. Before 1916, the committee closed their investigative hearings and in the interim only a few hearings were open.

That's it for this week. Next week will probably be the Senate Committee on Environment and Public Works unless news breaks about a relevant committee or someone makes a good any suggestion in the comments.

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