Thursday, November 19, 2009

Obama Cedes Too Much Power to Southern GOP Senators

Why have U.S. Senators Richard Shelby and Jeff Sessions (R-AL) been able to stall the appointment of a new U.S. attorney for the Middle District of Alabama? It's because the Barack Obama administration has allowed it to happen, giving the conservative Southern senators more power than they actually have over a presidential nomination.

That's the assessment of Alabama attorney Jill Simpson. And it explains why Leura Canary, the corrupt Bush appointee who oversaw the Don Siegelman prosecution, remains in office more than a year after Obama's election.

Even worse, the stalling tactics that Shelby and Sessions have been allowed to employ could have dire consequences in the future. They could lead, according to recent reports, the appointment of Tamara Matthews Johnson, a DOJ attorney in Birmingham who has strong Republican leanings. One insider says the choice of Johnson would be "disastrous."

None of this had to happen, Simpson says. The No. 1 choice among Democrats appears to be Montgomery attorney Joseph Van Heest. He probably would already be on the job, but Shelby voiced objections to the appointment. The Obama administration should have, in so many words, told Shelby to stick it, Simpson says:

In recent weeks, Alabamians have seen numerous articles appearing across the state that suggest Senator Shelby can single-handedly block the appointment of the new Middle District United States Attorney by turning in a blue slip. For this reason, I decided to research the Senate blue-slip procedure to see if this was true. And I found that it is not true.

What did Simpson discover?

The Senate blue slip is an opinion written by a senator from the state of residence of a federal judicial-position nominee, such as a United States Attorney. Apparently, both senators, any time there is a new appointment, are sent blue slips to fill out to tell their fellow senators what they think about the appointment. At that point, they are able to submit a favorable report and opinion, or an unfavorable report and opinion, of a nominee. They may also choose to not return the blue slip at all. It is then the option of the Senate Judiciary Committee to determine what weight it will give the blue slip when considering whether or not to recommend to the Senate to confirm a nominee. The blue slip is considered a senatorial courtesy. But it is not a unilateral right for a senator to be vexatious in the appointment of a judicial-position nominee.

Simpson found a law-journal article that shines considerable light on the subject:

In fact, during President George W. Bush's reign, a professor at Cumberland School of Law in Alabama named Brandon Denny, wrote an article called, "The Blue Slip: Enforcing the Norms of Judicial Confirmation Process." The article appeared in The William & Mary Bill of Rights Journal, Vol. 10, 2001. In that article Professor Denny accurately stated, "that the Executive Branch needs to take a more active role in identifying what is perceived to be an abuse of procedure during a confirmation process." What he meant was that we cannot allow senators to abuse the blue-slip process, causing perfectly good nominees to be denied. The executive branch should take active steps to notify the public when a senator is abusing the procedure of blue slips in an effort to get his way.

It is clear that in Alabama today we have that very situation. Richard Shelby took weeks to object, so we have been told, to Mr. Joe Van Heest. However, the White House has not released what Sen. Shelby put in his blue slip when he objected to Van Heest. The White House should tell the Democrats in Alabama, who helped elect President Obama, what Senator Richard Shelby put in his objection. If Sen. Shelby is just objecting, without having made a formal report, then he is clearly perverting the process of the blue slip. He should be forced to state why he is objecting, and it should be for a good reason. This thwarting of the process is causing a good nominee to be denied, all because a Republican senator is being allowed to run roughshod over the White House.

Surely, President Obama is not going to allow a little senator from Alabama to tell him not to appoint a good candidate, one who is approved by both Alabama Democratic groups that made recommendations for the appointment.

Shelby is not the only senator who has been allowed to abuse the process. Jeff Sessions nixed Michel Nicrosi, an attorney from Mobile. Says Simpson:

Additionally, Jeff Sessions supposedly objected to Michel Nicrosi. I am calling for the White House to also see that we are released the reasons in the blue slip for Jeff Sessions' opposition to Ms. Nicrosi.

One has to wonder what on earth is going on in the White House. Are they being held hostage from appointing a United States Attorney by two little senators in Alabama from the Republican party? Clearly the news coming out of Washington that the administration might appoint Tamara Matthews Johnson is unsettling, considering that she clerked for U.S. Supreme Court Justice Sandra Day O'Connor, who was a Ronald Reagan appointee. And Johnson was a key member in Alice Martin's legal team that repeatedly targeted Democrats in political prosecutions.

Simpson says Democrats--of all stripes, from all states--should confront the White House on this issue:

It is time for all the Democrats in America to call Rahm Emanuel, the White House Chief of Staff, and demand that he take steps to prove to the Democrats in Alabama that the White House is standing up to the two Republican Senators who are abusing the blue-slip system. The process is being abused to defeat two perfectly good nominees for the Middle District of Alabama. Please tell Mr. Emanuel that we want Obama to push one of these nominees--Joseph Van Heest or Michel Nicrosi.

President Obama can win this fight, even without these two Republican Senators, and it is time for him to stand up for the Alabama Democrats who voted for him to see that change is brought about in the Middle District. For far too long, Alabama Democrats have been politically targeted by a small group of Republicans called "the Alabama Gang." And it is well known that Richard Shelby and Jeff Sessions run the gang, so their recommendations should mean virtually nothing.

After all, it was not the Alabama Republicans who voted for President Obama. In fact, they did everything they could to defeat him. The time has come for President Obama to support the Alabama Democrats in their fight against Richard Shelby, Jeff Sessions, and "the Alabama Gang."


Cirze said...

But you wouldn't know that from his actions now would you?

This administration's decisions have confused me on this score from the first.

Who voted them in that needed this type of payback?

And then there's all the votes they got from the Goldman Sachs crowd.

I guess we'll have to read his next book.


After all, it was not the Alabama Republicans who voted for President Obama.

Anonymous said...

You take a blog name that implies you know something about the American Legal system, but then you demonstrate you don't.

There are three co-equal branches of government. It would be improper for the President to interfere with what is in the Senate province.

If you want to rail against Senator Reid or the head of the appropriate committee, go right ahead.

Yes, I know Bush abused the process but he did it through very willing and well rewarded deputies. But that shouldn't continue. So far Obama is getting almost what he wants and leaving the Republicans befuddled. They are throwing all they got against him and yet he is making progress.

If he came on in an absolutest model The Republicans would be more of a brick wall. Let's see what happens if he can get a decent health care reform bill passed.

I have a feeling the Republicans' obduracy will collapse and the saner ones will start being serious legislators.

Or more will come over to the light side a la Specter.

Y'all need to start calling Shelby and Sessions' offices – a lot – and tell them you want the health care reform bill passed. Don't let them think that everyone supports their actions.

And call them about their holding up the appointments. Tell them to allow an up or down vote.

legalschnauzer said...


Will have disagree with you on this one. No one is suggesting that Obama interfere with the Senate. But he has two very qualified candidates who have been put forward by Alabama Democrats, and he can move forward with them. As Jill Simpson (an attorney) points out, there are ways to fight back against obstructionist senators. And that's within the rules; it's not a matter of one branch interfering with another. At this point, we don't even know that a "blue slip" has formally been entered on the Middle District nominee. And we certainly don't know what reasons were put forth for such a blue slip. Chances are, there weren't any valid reasons, so Obama could move ahead. Given the votes he has in the Senate, he's being more deferential to Shelby and Sessions than he has to be.