What was to be a Senate Judiciary Committee consensus approval of five district court judge nominees and the nominee for solicitor general collapsed in disarray Thursday in a fight for disclosure of interrogation memos from the Justice Department’s Office of Legal Counsel.
Committee chairman, Senator Patrick Leahy, D-Vt., sought committee consent to seek subpoenas of purported torture memo material and opinions from the OLC, which provides legal advice to the White House and executive branch agencies.
But when Senator Jon Kyl, R-Ariz., objected and asked for the request to be put over a week, just one day before the Senate recesses, Leahy responded by also delaying for a week the vote on all five judicial nominees, as well as a vote on Gregory G. Garre as solicitor general.
This will leave just one day to vote the nominees out of the committee and win confirmation on the Senate floor before senators recess and return home to campaign for the November election.
If the Democrats prevail and Barack Obama is elected, all bets are likely to be off for the nominees during the lame duck session, according to Carl Tobias, a professor at the University of Richmond School of Law in Virginia, who studies the judicial confirmation process.
Kyl’s office did not respond to a request for comment. The senator is No. 2 in Republican leadership in the Senate and is the leading Republican member of the Judiciary subcommittee on terrorism and homeland security.
The five judicial nominees now in limbo are Clark Waddoups for the District of Utah; Michael M. Anello for the Southern District of California; Mary Stenson Scriven for the Middle District of Florida; and Christine M.
Arguello and Philip A. Brimmer, both for the District of Colorado. All five were expected to pass out of the committee with consensus approval.
In addition, the subpoena dispute delayed consideration of Brian Albritton as U.S. attorney for the Middle District of Florida.
Leahy had asked the committee to authorize issuing subpoenas for all legal analysis by the Office of Legal Counsel provided to the executive branch since Sept. 11, 2001 concerning the Bush Administration’s national security policies and practices related to terrorism.
“I have been stonewalled even in my repeated request for something as simple as an index of OLC opinions,” Leahy wrote in an Aug. 19 letter to Fred Fielding, counsel to the President.
The request was to support the committee’s investigation into the legal basis for the detention and interrogation practices of the administration, according to Leahy.
So far, the Justice Department has refused, citing the attorney-client confidentiality of legal advice given to the executive branch and the national security issues at stake.
Even providing the committee with an index of opinions “would compromise significant Executive Branch confidentiality interest,” came the Sept. 3 Justice Department response in a letter to Leahy.
Sen. Dianne Feinstein, D-Calif., weighed into the discussion Thursday, expressing frustration that senators seem unable to even get subpoenas issued with the same ease the lower house accommodates for investigations.
“The subpoena power of the Senate is weak in comparison to the subpoena power of the house,” she said. “Basically any administration can thwart the work of this body because they can just stonewall and refuse to provide documents. I think that should be unacceptable,” she said. “Our subpoena power is a myth, it doesn’t exist.”
“I find it frustrating year after year to ask for OLC opinions on fundamental subjects and be turned down,” she said.
