Senate Passes Bill to Streamline Confirmation of Executive Branch Nominees

This morning, by a vote of 79-20, the Senate passed S. 679, the Presidential Appointment Efficiency and Streamlining Act of 2011, a measure that will significantly reduce the number of executive positions subject to Senate confirmation.

Specifically, a third of the current Senate confirmable positions—all minor posts—will now either not require confirmation at all or enjoy a streamlined confirmation process. Senators Charles Schumer (D-NY), Lamar Alexander (R-TN), Joe Lieberman (I-CT), and Olympia Snowe (R-ME) deserve praise for championing the legislation, which will help ease the backlog of nominations and free up senators’ time to focus on other important legislative business.

Senate Confirms Three DOJ Nominees

Today the Senate confirmed three top Justice Department attorneys after a lengthy delay. James Cole, who has been opposed by Republicans because he supported using civilian courts to try suspected terrorists, was confirmed 55-42 to be Deputy Attorney General. Cole was nominated on May 24, 2010, and was successfully filibustered by Republicans in May of this year. Virginia Seitz was confirmed on a voice vote to head the Office of Legal Counsel (“OLC”), and she is the first Senate-confirmed OLC head since 2004. Finally, Lisa Monaco was confirmed on a voice vote to lead the National Security Division.

Seitz’s nomination is notable because the OLC is known as the "constitutional conscience" of an administration, offering authoritative opinions on complex and important legal matters about which agencies within the executive branch might disagree, and exercising judgment independent of the political will of the president. However, during the Bush Administration between 2002 and 2007, OLC lawyers such as Jon Yoo and Jay Bybee authorized every interrogation practice proposed by the CIA, even those that many legal experts agree violate our federal laws prohibiting torture and conspiracy to commit torture and war crimes; our constitutional ban on cruel and inhuman treatment; and the Geneva Conventions' absolute prohibition of torture.

For more information on the OLC and issues related to torture, please visit AFJ’s Accountability for Torture webpage.

Arbitration Contracts and a Different Problem of Bargaining Power

Joe Nocera has a column in the New York Times about the fight to nominate, or for that matter confirm, Elizabeth Warren, or for that matter anyone, to head the new Consumer Financial Protection Bureau, created by last year’s historic Wall Street reform legislation. Senate Minority Leader Mitch McConnell has preemptively threatened to filibuster Warren if she’s nominated by President Obama, and gone further by insisting that significant changes be made to the agency’s structure and powers before any nomination happens. House Oversight and Government Reform Committee Chairman Darrell Issa has poured fuel on the fire with his “round[s] of browbeating” in that committee, subjecting Warren to accusation and embarrassment over what has actually been a quite successful tenure as advisor to the nascent CFPB.

But this story is about more than Capitol Hill power-politicking. Elizabeth Warren and President Obama aren’t even the real victims here. The CFPB was tasked by the Dodd-Frank bill with conducting a study on forced arbitration clauses (“arbitration of any future dispute,” in the statutory language) in consumer financial products and services. Once that study is complete, the agency will have the power to enact regulations consistent with its results. Those results probably won't look good for the financial industry.

Millions of Americans are already subject to forced arbitration contracts, and every day thousands more unwittingly sign, click, or become unilaterally subject to new fine-print terms. The Supreme Court’s decision in AT&T Mobility v. Concepcion will likely increase the pace at which corporations add binding arbitration clauses to their consumer contracts. The CFPB can stop or limit the practice, but only after its study is complete, and only after writing and issuing a regulation. Even then, the Dodd Frank Act builds in a 180 day waiting period after the regulation takes effect (which in itself can be delayed by the administrative process), and only after that will new arbitration contracts be regulated.

Every day that the White House and Senate are delayed from confirming a director to the CFPB pushes back the time when this badly-needed change will come to the financial industry. And that day is already going to be six months too late for many.

Senate Leaders Agree on Plan to Streamline the Confirmation of Executive Branch Nominees

Yesterday's New York Times reported on bipartisan legislation that would cut the number of executive branch positions requiring Senate confirmation votes. The proposal would eliminate Senate review for about 200 mid-level executive branch positions.

The bill, S. 697, was introduced by Senator Charles Schumer (D-NY) and is cosponsored by seven Republicans and seven Democrats, including Senate Majority Leader Harry Reid (D-NV) and Senate Minority Leader Mitch McConnell (R-KY). The bill's supporters say "they want to ease what they call an arduous chore for mid-level nominees trying to navigate the Senate in a supercharged partisan era."

When President John F. Kennedy took office in 1961, there were about 280 confirmable posts in the executive branch; today, that number is over 1,400. This legislation is intended to reverse that explosion, making space on the Senate's calendar for other business, such as judicial confirmations and legislation.

Senator Susan Collins (R-ME), a strong supporter of the proposal, said that "we are losing very good people because the process has become so onerous, so lengthy and so duplicative... Why should there be a full F.B.I background check back to age 18 for an individual serving on a part-time board?"

Despite the bill's strong bipartisan support, it does have some detractors. David S. Addington said that this bill would give President Obama "kingly power" to appoint mid-level executive staff. Addington, who as chief of staff to former Vice President Dick Cheney championed policies that sought to maximize executive power, is apparently wary of executive power now that George W. Bush is no longer president.

Click here to read the full article.

Sen. Reid Speaks Out Against Obstruction of Obama Nominees

Yesterday, Majority Leader Harry Reid took to the floor of the Senate to highlight the adverse effects of Republican obstructionism. In the first four months of the Bush administration, when the Senate was controlled by the President’s party and Democrats were in the minority, there wasn’t a single filibuster of a Bush nominee. Yet, in the first four months of the Obama administration, Republicans filibustered eight of his nominees.
We know Obama’s nominees were not filibustered because they were controversial or unqualified, as their final votes were in the 80 to 97 vote range. As Senator Reid said,

I would try to explain the Republican reason for their refusal, but as with so many other things they oppose, a rationale simply doesn’t exist. Senate Republicans are simply so opposed to everything – absolutely everything – that they even oppose putting people in some of the most important positions in our government.
These delay tactics waste precious time when Congress should be working on issues such as health care, the economy, climate legislation, and filling the rampant vacancies in our judicial system.

The Senate must vote to confirm nominees such as Professor Dawn Johnsen, who was tapped to head the Department of Justice’s Office of Legal Counsel (OLC) on February 11, 2009 and has still not had a vote despite her eminent qualifications, experience in the OLC during the Clinton administration, and support from distinguished Republicans and Democrats.

We’re glad Senator Reid has spoken out against these harmful delays and in favor of putting the president’s team in place to work for the American people.
Now it’s up to Majority Leader Reid to call the question and let the Senate vote on these highly qualified, outstanding nominees.

Mainers Urge Senators to Support Vote on Johnsen

This morning, the Maine Women’s Lobby delivered a petition signed by Mainers to the Augusta offices of Senators Snowe and Collins. The petition signers urge their senators to support a prompt vote on President Obama's nomination of Dawn Johnsen to head the Justice Department's Office of Legal Counsel.

The petitions were signed by members and supporters of Alliance for Justice, NARAL Pro-Choice America, Planned Parenthood, People for the American Way, the Religious Action Center for Reform Judaism, CREDO, and the Leadership Conference on Civil Rights.

Prof. Johnsen is eminently qualified to serve in this position. But her nomination is being held hostage by a threatened filibuster by Senate Republicans to further their partisan political agenda. Some of those who oppose her appointment also seem to have a problem with female nominees. Despite her experience that directly qualifies her for this job, Sen. John Cornyn (R-TX) said he does not think she has the "seriousness" to take on this responsibility.

Instead of further delay, the Senate should hold a vote and get back to other priority issues such as the economy, health care, and education.

Read more about Prof. Johnsen’s nomination.
Send a letter to your Senators supporting a prompt vote on the nomination.