"Senator Jim Webb, Democrat of Virginia, has decided not to run for re-election..."

"...  avoiding a blockbuster rematch with the man he beat in 2006, George Allen, and giving Senate Republicans another opportunity to help them reclaim the majority."

Care to speculate on why Webb won't put up with a second electoral encounter with Allen?  Or should I say why he doesn't feel enough affinity for Senate Democrats to want to help them keep their numbers up?

"There's a misimpression out there that... federal agents arrive in black helicopters dressed in fully equipped armed ninja costumes, kick down your bedroom door and drag you off at the point of bayonets to an insurance agency."

... hyperbolized lawprof Walter Dellinger at yesterday's Senate Judiciary Committee hearing on the constitutionality of the Affordable Care Act. (Video here.)

In fact, what -- all that happens is that for those who are not otherwise exempted and -- when they're filling out their federal income tax return, if you're not maintaining minimum coverage, you have to pay an additional 2.5 percent, much less than Social Security. That's all that happened.

So in that sense, this great intrusion on liberty doesn't approach any slippery slopes or exceed any understood limits in our legal culture. 

I thought the point of worrying about approaching slippery slopes is that we would otherwise accept one incremental intrusion after another and never see fit to draw the line and, thus lulled, we would lose our liberty.

The Senate Judiciary Committee has a hearing on the constitutionality of the health care law.

Oh, look! They're finally paying attention to a little technical matter they ought to have taken account of a year or so ago.



Watch with me.

"Senator Feingold joins Marquette Law School with a substantial academic, legal and legislative background."

"He will draw on all of this in working with students in their analysis of some of the most complex legal issues facing our nation and world today. I look forward to his service on our faculty."

His course: Current Legal Issues: The U.S. Senate.

What current U.S. Senate legal issues would you put in a law school course? Perhaps something about the way the Senate takes account of constitutional values like federalism and individual rights and why that does (or doesn't) deserve deference from the judiciary?

ADDED: In 2005, Feingold gave a lecture at my law school called "Upholding an Oath to the Constitution: A Legislator's Responsibilities." (Coincidentally, we're talking about the congressional oath today on this blog.) In my 2005 post on the lecture, I said:

Russ Feingold spoke about his devotion to the oath he took as a senator to uphold the Constitution and the second oath he took for the Clinton impeachment trial. Feingold was the only Democratic senator to vote against the motion to dismiss the impeachment. He applied a legal standard to the motion and had to vote the way he did because he could not say that there was no chance of proving the charges against the President....

Feingold talked about his campaign finance reform law, which he cared about because he was "tired" of hearing that politics was "about money, not ideas." He reminisced about the court case, challenging the constitutionality of the law, and described sitting through a nine-hour deposition conducted by the great First Amendment lawyer Floyd Abrams. Abrams began his questioning praising Feingold to his face for his reputation for upholding the Constitution. As Feingold put it later in the question session, Abrams spent the nine hours "trying to confuse me." I'd say the praise that he started off with was a deliberate effort to unnerve the senator. Feingold could hold his ground, he thought, because he believed his position was consistent with his oath to protect the Constitution, because "we spent a great deal of time crafting that bill" to avoid constitutional violations....

He spoke about the Patriot Act and his anguish at the speed with which it was pushed through the Senate, beginning with a closed door hearing on October 3, 2001.... Feingold objected to this sort of "legislation on the fly." Many members of Congress admitted to him that they had not read the text of the Patriot Act....

Ahem. Health care. Ahem.

... He ended his speech with the observation that it has been complex to keep his oath to uphold the Constitution and that he has "struggled constantly to get it right."...

I would never have said this out loud, but I couldn't help thinking how interesting it was that Feingold shaped his whole lecture around the sanctity of the oath, when just a few days ago he announced that he was getting a divorce, his second. Was I the only one who thought how strange it was to hear a man piously invoke a passionate fidelity to an oath when he had -- so conspicuously -- gone back on the marriage oath twice?

"Now Might Be A Really Great Time (For Republicans) To Weaken The Filibuster."

Hmmm.

"I don't need to hear the sanctimonious lectures of Sen. Kyl and DeMint to remind me of what Christmas means."

Said Harry Reid.

Let's talk about Joe Lieberman.

It seems to me that the Senate is likely to end up 50-50. Did you notice California is considered a toss-up now? But that 50 for the Democrats assumes the inclusion of Joe Lieberman, who's an independent. Why wouldn't he switch to the Republicans?

The Senate will end up 50-50.

I predict, after clicking on the details to the 6 races counted as "Toss Ups."

"Not backing down... President Obama has formally renominated five judges whose candidacies were previously derailed by Senate Republicans."

Sam Stein reports. (Is "reports' the right word?)

Obama's decision to renominate these figures demonstrates that the White House is not just willing, but eager to spotlight the remarkably slow pace of its judicial confirmations...

The administration has been left largely powerless to move Senate Republicans, save for somewhat-idle threats to keep Congress in session while individual nominations are debated. But they are finding more and more allies in their frustration from prominent judicial and political figures. On Monday, the American Constitution Society began circulating a letter signed by a group of former federal court judges appointed by both Democratic and Republican presidents, urging the Senate to take immediate action on languishing nominations.

Former federal court judges appointed by... Republican presidents? Surely, this is impressively neutral support for the President...  or so I will believe when we have a Republican President facing foot-dragging Democratic Senators and there's an equivalent letter signed by former federal court judges appointed by  Democratic Presidents.

"How Lisa Murkowski (might have) lost."

Explaining Joe Miller.

Shed a tear for the clown trapped in the place of no mirth.

The NYT does.

Cobwebbed by senseless rituals, speeches which no one listens to and rules that make it all but impossible to act on the will of the people, the Senate cries for more ridicule, decorum breaches and old-fashioned wit.

To get through that sentence you need to believe: 1. If only the Senate didn't require 60 votes for cloture, the bills that would pass would be what the people want, and 2. When the legislative process is dysfunctional, what you want is hilarity. Now, the column is about the Sad Clown of the Senate Al Franken, so we come to that sentence bearing another burden of credulity: that Al Franken is a rich source of wit and ridicule. As for decorum breaches... this is a different sort of mental obstacle for me. Under what circumstance is it good for an individual member of a legislative body to make himself an exception to the rules of decorum? Who does he think he is? He's not the star of a movie satirizing government. He's one of a group of equals who have taken on the public service of making laws.

... Little has changed since Mark Twain offered this assessment: “Suppose you were an idiot. And suppose you were a member of Congress. But I repeat myself.”

If Al Franken is such a wit, why are you quoting Mark Twain? Answer, via Mark Twain: Al Franken is an idiot.

Hmmm... would it breach decorum for me to say that Al Franken is a big, fat idiot?

... Absent any structural change, what the Senate badly needs is a jolt of humor, a clown to shame fellow members of the circus. More ridicule, more mirth under the spotlight to fight a mildewed sense of entitlement, could have the ironic effect of forcing senators to act like adults.

A clown to shame.... oh, yeah! You know the rich comic tradition of The Shaming Clown.

I used to draw the news.

In the mid-90s, in the days before blogging, when I had only a marginal interest in the news, I'd watch TV, draw, and jot down disembodied phrases that amused me. Here's a good example of the sort of thing I did back then:



(Enlarge.)

I have no idea now what these politicians were talking about, and, apparently, I had the same feeling of distance back then. 

Susan Collins, Olympia Snowe, Lindsey Graham, Richard Lugar, and Judd Gregg.

Republicans who voted for Elena Kagan, who was confirmed by the Senate today, by a vote of 63-37.

The Democrat who voted no was Ben Nelson.

Am I sorry not to be live-blogging the Kagan hearings today?

I don't want to slog through the Senators reading their questions to the nominee. It's such a slow-motion ritual. Her answers are so predictable. But what I find most annoying is the Senators' inability to do proper followup questions to force her to get past the predictable. For example, from my live-blog yesterday:

Senator Kyl [reads] Obama's empathy statement — you can read it here: In 5% of cases, Obama said, "adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon," and one must at that point rely on "one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy." Kagan is forthright: "It's law all the way down." She says that several times — and I note that her statement isn't really at odds with what Obama said. A good follow-up question would have been: But do you think that law includes a component that comes from deep values and human empathy? The secret answer is: Yes.

If I had a written transcript, I would pick out one thing after another like that and write the text of the missing colloquy.

Why don't the Senators do better? Yeah, they are scripted, but the nominee's answers are predictable enough that the followups could be scripted too, more or less. And that's assuming the Senators are too dumb or timid to think on their feet. (Technically: on their asses.  We say "asses" now in polite company, of course, after this and this. It's standard American speech in 2010.)

I think it's more likely, in fact, that Kagan is being given a pass, and that the Senators from both parties have their reasons for giving her a pass. It's related to the unavailability of a transcript, I'm guessing.

Who really has an interest in attacking Kagan? I think that it is the strong ideological progressive who doesn't care much about the political fate of the Democratic Party. Can you see why? I'll try to spell it out later, but, right now, I need to get out in the real world....



And we know where the ripe black raspberries are!

Watching the Elena Kagan confirmation hearing.

Here's the live stream, which begins at 12:30 ET. You'll also be able to watch non-live. After all the new Supreme Court cases this morning, I'm not going to park myself in front of the screen and watch the Senators read their statements, which should take all afternoon. I'll catch up later and do some commentary, but I need to go live in the physical world for a little while. Please comment on the hearings in this post.

Robert Byrd has died.

Here's the long obituary for him in the New York Times. It's worth reading the whole thing, and I'll just excerpt a few things that happened to strike me for one reason or another:

[He called West Virginia] “one of the rock bottomest of states.”...

Mr. Byrd was the valedictorian of his high school class but was unable to afford college. It was not until he was in his 30s and 40s that he took college courses. But he was profoundly self-educated and well read. His Senate speeches sparkled with citations from Shakespeare, the King James version of the Bible and the histories of England, Greece and Rome....

Referring to the Line-Item Veto Act, he said:

“Gaius Julius Caesar did not seize power in Rome,” he said. Rather, he said, “the Roman Senate thrust power on Caesar deliberately, with forethought, with surrender, with intent to escape from responsibility.”

The Supreme Court later found the act unconstitutional, a violation of Separation of Powers, though not in the first case it considered on the subject. The first case, which bore Senator Byrd's name — Raines v. Byrd — was rejected for lack of standing. The members of Congress who brought suit were held not to have standing to challenge the constitutionality of the bill Congress had passed because it caused "no injury to themselves as individuals." The obituary doesn't mention this case.

Back to the obituary:

In 2007, at the unveiling of a portrait of Mr. Byrd in the Old Senate Chamber, former Senator Paul S. Sarbanes of Maryland, a colleague of 30 years, recalled that Mr. Byrd had taught him how to answer when a constituent asked, “How many presidents have you served under?”

“None,” was Mr. Byrd’s reply, Mr. Sarbanes said. “I have served with presidents, not under them.”

I hope every member of Congress would answer that way.

In the early 1940s, he organized a 150-member klavern, or chapter, of the Klan in Sophia, W.Va., and was chosen its leader at a meeting. After the meeting, Joel L. Baskin, the Klan’s grand dragon for the region, suggested that Mr. Byrd use his “talents for leadership” by going into politics.

“Suddenly, lights flashed in my mind!” Mr. Byrd later wrote. “Someone important had recognized my abilities.”...

His opponents used his Klan membership against him during his first run for the House of Representatives in 1952; Democratic leaders urged him to drop out of the race. But he stayed in and won, then spent decades apologizing for what he called a “sad mistake.”

He went on to vote for civil rights legislation in 1957 and 1960, but when the more sweeping Civil Rights Act was before Congress in 1964, he filibustered for an entire night against it, saying the measure was an infringement on states’ rights. He backed civil rights legislation consistently only after becoming a party leader in the Senate....

Mr. Byrd was born Cornelius Calvin Sale Jr. on Nov. 20, 1917, in North Wilkesboro, N.C. His mother died the next year in the influenza epidemic, but before she did, she asked his father to give him to a sister and brother-in-law. They adopted him and renamed him Robert Carlyle Byrd, then moved to rural West Virginia.

So old that his mother died in the flu epidemic of 1917.

As a boy, living on a small farm, he helped slaughter hogs, learned to play the fiddle and became a prize-winning Sunday school student after the manager of the local coal company store gave him two pairs of socks so he could attend without embarrassment.

In 1937, Mr. Byrd married Erma Ora James, his high school sweetheart. She died in 2006, after 68 years of marriage....

He was never a particularly partisan Democrat. President Richard M. Nixon briefly considered him for a Supreme Court appointment. Mr. Dole recalled an occasion when Mr. Byrd gave him advice on a difficult parliamentary question; the help enabled Mr. Dole to overcome Mr. Byrd on a particular bill....

Mr. Byrd always carried a copy of the Constitution. He said his second-proudest accomplishment was legislation requiring every educational institution receiving federal aid to observe the anniversary of the signing of the Constitution on Sept. 17 by teaching students about it.

I don't think Congress monkeying with the curriculum of public schools is very respectful of the Constitution. Ironically. That's especially bad coming from someone who presented his opposition to the Civil Rights Act as a matter of states rights.

When the Senate was struggling to agree on rules for the impeachment trial of Mr. Clinton in 1999, Mr. Byrd warned that the Senate itself was also on trial.

“The White House has sullied itself,” he said, “and the House has fallen into a black pit of partisanship and self-indulgence. The Senate is teetering on the brink of that same black pit.”

When, in 2005, Republicans considered banning the filibuster on judicial nominations, he warned that such an action would change the “nature of the Senate by destroying the right of free speech it has enjoyed since its creation.”

In “Losing America,” he wrote that the Senate without the filibuster “will no longer be a body of equals.”

“It will, instead, have become a body of toads,” he wrote, “hopping up and down and over one another to please the imperious countenance of an all-powerful president.”

A body of toads, hopping up and down and over one another to please the imperious countenance of an all-powerful president.

***

Now, how will his seat be filled? It appears that, under West Virginia law, because the vacancy has occurred before July 3rd, there will be an election this year. If Byrd had survived until this Saturday, the Governor would have appointed his replacement, and that person would have continued in office until 2012.

Rand Paul is in. And Specter is out.

It's been a big night.

"It’s been a great privilege to serve the people of Pennsylvania,” said Mr. Specter, looking drawn and downcast as he delivered a brief concession speech.... “And I’ll be working hard for the people of Pennsylvania very hard for the coming months.”...

“I have a message,” Mr. Paul said, delivering a victory speech in Bowling Green. “A message from the Tea Party. A message that is loud and clear and does not mince words: We have come to take our government back.”

The Nation: "Elena Kagan should be borked."

In the special Kagan meaning of "bork":

In what is by now an oft-quoted snippet from one of her law review articles, Supreme Court nominee Elena Kagan castigated the confirmation hearings of Justices Souter, Kennedy, Ginsburg and Breyer as a "vapid and hollow charade."...

What is less remarked upon is that in her article Kagan proposed a model for a more vigorous and candid confirmation hearing—that of Judge Robert Bork. The process worked in that instance, she argued, not because of the particular result but because the hearings "presented to the public a serious discussion of the meaning of the Constitution, the role of the Court, and the views of the nominee; that discussion at once educated the public and allowed it to determine whether the nominee would move the Court in the proper direction." In both popular and right-wing parlance, "borking" now means to vilify and defame a nominee in order to block his appointment, but Kagan's description is in fact a far more accurate account of what happened—senators rigorously probed and considered Bork's legal opinions and voted accordingly. So it is with this understanding that we propose, in the spirit of democratic deliberation of which she so eloquently wrote, that Elena Kagan should be borked.

But this kind of borking is impossible unless the nominee wants it. It doesn't matter what questions the Senators come up with or how pushy and repetitive they are about asking them, the "vapid and hollow charade" can be kept up by the nominee until the clock runs out. The only reason the Bork hearings proceeded the way they did was because Bork chose to engage in legal debate with the Senators. He obviously believed in his ability to explain his ideas in a superior fashion, but he wasn't quite as smart as he needed to be about how it all looked to the people watching it on television, and he gave his enemies the ammunition they needed to bring him down.

Since Bork, all the nominees have adopted the same self-protective stance that Kagan criticized in her article. What would motivate Kagan to do anything other than that? I have 3 thoughts.

1. Kagan wrote a law review article criticizing the vapid self-protective approach to the hearings. She has a little incentive to avoid hypocrisy. A little.

2. She might really care about the criticism she once penned and want to set a new example of how a nominee can be forthright and expressive without losing, like Bork.

3. Unlike the nominees who adopted the self-protective strategy to deprive the President's opponents of the ammunition to shoot them down, Kagan could be pushed by Democratic Senators. That's what The Nation wants to see. It will be interesting if Democrats try to extract assurances of liberalism from Kagan, but why would Kagan want to give them that. Whatever might work for her with them will work against her with others — and with the American people who are consuming tidbits on TV and on line. I, for one, will review every word of the transcripts looking for interesting things to highlight. It's risky to give out any good material, but I hope she does. I don't think she will.

Bottom line: Expect another vapid and hollow charade.

What Goodwin Liu said about Samuel Alito...

At his confirmation hearing, lawprof Goodwin Liu, nominated for the 9th Circuit Court of Appeals, is  being taken to task by Senator Kyl for what he said at Samuel Alito's confirmation hearing. (There is also talk of Liu as a future Supreme Court nominee.)

“Judge Alito’s record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse … where a black man may be sentenced to death by an all-white jury for killing a white man,” Liu wrote. “I humbly submit that this is not the America we know. Nor is it the America we aspire to be.”

The testimony was “vicious, emotionally and racially charged, very intemperate, and to me it calls into question your ability to approach and characterize people’s positions in a fair and judicious way,” Kyl said.

Liu only acknowledged that this language was “unnecessarily flowery.”

Flowery? As Lou Reed once sang, "Vicious, you hit me with a flower...."

Arlen Specter wants Justice Stevens not to retire this year.

"I think the gridlock in the Senate might well produce a filibuster which would tie up the Senate about a Supreme Court nominee. I think if a year passes, there's a much better chance we could come to a consensus."

Obama should just pick a relatively moderate liberal judge. That would avoid the filibuster this year, and it's what he'll have to do next year. So what is Specter talking about?

Specter is bouncing off what Senator Kyl said:

"I think the president will nominate a qualified person. I hope, however, he does not nominate an overly ideological person. That will be the test," Kyl said. "And if he doesn't nominate someone who is overly ideological, I don't think -- you may see Republicans voting against the nominee, but I don't think you'll see them engage in a filibuster."

So, you see my point. Maybe what Specter is really thinking is that it will hurt the Democrats in the fall to spend the summer paying attention to the subject of liberal ideology on the Supreme Court. Specter has been on the Senate Judiciary for a long time, both as a Democrat and a Republican, so he knows all about the way the 2 parties manipulate the occasion of Supreme Court nominee hearings.