January 2011

President Barack Obama has nominated two highly qualified individuals to serve in key executive branch legal positions, and "policy disagreements with the president" are not cause for denying him his selections, The Washington Post editorial board writes.

The editorial praises the accomplishments of Sidley Austin partner Virginia A. Seitz (pictured), nominated to lead the Office of Legal Counsel, and White House Deputy Counsel Donald B. Verrilli Jr., nominated to become solicitor general.

"The Senate has an opportunity - and a responsibility - to prove that the confirmation experience of Dawn E. Johnsen was an aberration," the editorial states.

Johnsen, an ACS Board Member, was the previous nominee to head the Office of Legal Counsel, but she withdrew her nomination after 14 months of Republican obstruction, "in large part because Ms. Johnsen had criticized the Bush administration's detention and interrogation policies," the editorial states. "Now some conservatives are grumbling about President Obama's new OLC nominee - because she apparently has no publicly enunciated views on national security issues. Neat trick."

The editorial continues:

Their protestations, in any case, miss the mark. Policy disagreements with the president should not be used to deny him his choice of executive branch personnel. These appointees, who do not enjoy life tenure, are meant to carry out the president's prerogatives. Every nominee should get an up-or-down vote. And except for disqualifying ethical or legal lapses or views so extreme as to be far afield from the mainstream, the president should get his picks.

Verrilli, a frequent ACS event participant, has argued many cases before the Supreme Court, and is known for "bringing passion to his pro bono work," according to a profile by The National Law Journal.

Seitz, also a frequent ACS participant, is amassing a "small Republican 'fan club' " of lawyers at her firm and others who admire the quality of her work, The Blog of Legal Times recently reported.

Senators Tom Udall, Jeff Merkley and Tom Harkin have been extraordinary leaders of a hard-fought effort to reform the Senate rules. ACS, while not taking a position on specific proposals, worked to educate Senators about the constitutional history and the extent of current filibuster abuse. More than sixty organizations involved in an informal Fix the Senate Now coalition joined in supporting their proposals. It is therefore unsurprising that, with the defeat of the Udall, Merkley, and Harkin resolutions yesterday, the initial takeaway is that "reformers lost."

My take: Yesterday was a day of considerable progress in the latest round of a multi-round fight to make the Senate work.

Reformers won modest changes in the rules themselves by way of a deal negotiated between the leadership of both parties. They showed that they had nearly majority support for more substantial reforms. And they won an assurance that instead of Democrats playing by one rulebook when they are in the majority, only to have the Republicans subjugate them with different rules later, both parties will play by the same rules.

Reformers did not prevail on a key procedural issue. They knew that, as in past rules reform battles, those opposed to reform would filibuster the proposed changes. Reformers relied on judicial and Senate precedents affirming that, because a previous Senate can't constitutionally limit the powers of today's Senate, a majority is sufficient to break a filibuster - if it does so before the Senate implicitly ratifies the old rules by operating under them. This procedure, the "Constitutional Option," differed from the 2005 "Nuclear Option," in which the Republicans attempted to throw out the rules in the middle of a session, after the new Congress had already ratified them.

Senators Udall, Merkley and Harkin had put forward a proposal fair to both parties, one that they knew was unlikely to garner unanimous Democratic support. They had hoped to win the support of some Republicans for both the substantive proposals and the Constitutional Option, especially since so many Republicans had supported the far more radical Nuclear Option. In the end, even Republicans who had publicly called for reform refused to back their reform proposals.