Author Archives: Michael Froomkin

Countdown to the Restoration

Posted on January 13, 2009 by Michael Froomkin

Posted in Politics: US: 2008 Elections | 3 Comments

MAD and Englishmen

Posted on January 13, 2009 by Michael Froomkin

Via rc3.org, a pointer to Slate's The Letter of Last Resort, an interesting and somewhat spooky meditation on the British approach to nuclear mutual assured destruction.

Bonus: Stephen I. Schwartz, editor of the Nonproliferation Review at the Monterey Institute of International Studies, and Deepti Choubey, deputy director of the nonproliferation program at the Carnegie Endowment for International Peace, Nuclear Security Spending: Assessing Costs, Examining Priorities. (Via Kos)

Posted in National Security | Comments Off

Cabinet Confirmation Mechanics

Posted on January 13, 2009 by Michael Froomkin

I don't usually like to throw questions out to the lazyweb, but this is the first week of classes which is always busy.

So here's my question: the Senate has started a whole round of confirmation hearings for Cabinet and other top appointments by president-elect Barack Obama. But as far as the Constitution is concerned, only the President, not the President-elect, can make nominations to government jobs. The Senate is of course free to hold hearings about whatever it wants, and there is no constitutional requirement for a committee to do anything prior to the full Senate's exercise of its 'advice and consent' power. But I don't see how the full Senate could vote on a nomination without there being an actual official nomination.

Legally, I can see two ways for this to work. Either the incumbent has already made a courtesy nomination, which I think is highly unlikely, or the Senate is front-running on the actual nomination, which will come as soon as Mr. Obama is inaugurated. In the first version, the full Senate can vote any time; in the second version the Senate can't actually vote until January 20, after the nomination officially happens. (There is of course at least one more possibility, which is that the niceties are not being observed. Yet even if there were a transitional statute that applied I don't see how it could trump the Constitutional provisions governing appointments of the leading Officers of the United States.)

NPR, at least, reports that,

Kerry has said he plans to hold a committee vote before week's end, setting up a scenario where the Senate could confirm [Sen.] Clinton before Obama is sworn in Jan. 20, and a new senator named to fill her New York seat.

If that's right, my second scenario is wrong. But then again, maybe that's not right.

Anyone know the actual facts?

Posted in Law: Constitutional Law | 7 Comments

The Holder Strategy

Posted on January 12, 2009 by Michael Froomkin

Usually Steve Benen is to my mind one of the most clear-sighted observers of the DC scene. Yet, in an item on Eric Holder's GOP Friends in which he correctly notes that Holder will get confirmed with votes to spare, Steve writes,

I'm struggling to wrap my head around the Republican gameplan on this. Their caucus has 41 members, and even if the GOP were to filibuster Holder's nomination, which seems unlikely, they'd lose.

Why then, he wonders, beat up on the guy?

From out here the answer seems obvious: it's a two-fer. First, the Justice Dept. is one of the bureaus that can really hurt the GOP if it starts to investigate what's been doing these past eight years. There's no harm, and much gain, to bloodying up the Attorney General as much as possible in order to attempt to diminish his credibility, and it sets up future accusations of partisanship and/or attempted payback if prosecutors get frisky.

Second, think of the TV: a well-spoken black lawyer in the dock being accused of unethical conduct. Plus, a chance to hyperventilate about links to Clinton sleaze. Might splash back on the President in some eyes? Can't hurt to try.