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Tag: Judiciary Committee

  • A Final Chapter Unbefitting an Extraordinary Legacy

    A Final Chapter Unbefitting an Extraordinary Legacy

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    Senator Dianne Feinstein, who died last night at 90, braved one of the most remarkable political expeditions in American history—and also one of the grimmer spectacles at the end of her life and career.

    Is it too soon to point this out? Yes, perhaps. With the official notice of her death today, Feinstein received her just and proper tributes, hitting all the key markers: How Di-Fi, as she is known in Washington shorthand, had stepped in as mayor of San Francisco after her predecessor was assassinated in 1978. How she was a fervent proponent of gun safety, the longest-serving woman in the Senate, and the chamber’s oldest member. How, as chair of the Senate Intelligence Committee, she presided over the preparation of an incriminating report describing the CIA’s torture of suspected terrorists in secret prisons around the world. How she was a trailblazer, stateswoman, powerhouse, force, grande dame, etc. Give her her due. She deserves it.

    But Congress can be a tough and ghoulish place, with its zero-sum math and unforgiving partisanship. Over her last year, Feinstein’s declining health became a bleak sideshow—her absences and hospitalizations, shingles, encephalitis, and bad falls; the lawsuits over her late husband’s estate and the cost of her medical bills and long-term care.

    Feinstein’s insistence on remaining in the Senate—and the uncertainty of her schedule—complicated life for Democrats, making it harder for them to hold votes, set strategy, and confirm judges. Her colleagues and White House officials whispered their frustration. And she became the latest exemplar of a basic, egalitarian principle in lawmaking: Even the most legendary figures ultimately amount to a vote. Often your most important job is simply to be available, show up, be counted.

    When that is in doubt, patience can wear fast. Questions about “fitness” arise. Such is the price of continued residency in the senior center of the Capitol. Feinstein resisted quitting for years, and only grudgingly said she wouldn’t seek reelection in 2024, leaving the race to succeed her in a kind of morbid suspension.

    Politics, of course, runs on its own schedules and follows its own rules. A few weeks ago, I asked Adam Schiff, one of the California House Democrats running to succeed Feinstein in the Senate, whether she should step down. In other words, was she fit to serve? Again, maybe this was harsh, but it had become a standard question around Washington and California, and perfectly germane, given the tight split in the Senate. “It’s her decision to make,” Schiff said, a classic duck, but also practical. “I would be very concerned,” he continued, “that the Republicans would not fill her seat on the Judiciary Committee, and that would be the end of Joe Biden’s judicial appointments.” (Politico reported today that Republican Whip John Thune, of South Dakota, said he expects that his party will not resist efforts to fill committee seats left vacant by Feinstein’s death.)

    Schiff added that he had continued to have a productive working relationship with Feinstein’s office, despite her health struggles. He was a proponent of business as usual, for as long it lasted, and Feinstein was still there. The pageant continued, the government heading for another shutdown, House Republicans tripping toward an impeachment and over themselves.

    In the hours after Feinstein’s death was announced, Washington took a brief and deferential pause. Statements and obituaries were dispatched, most prepared in advance. Then it was on to the next. Who would California Governor Gavin Newsom pick to serve out Feinstein’s term? How would that affect the race to succeed her next year? Who would replace Feinstein on the Judiciary Committee, and when would they be seated?

    The hushed questions about how long the nonagenarian senator could hang on finally had their resolution. Far too many people in power resist the option of a restful denouement. The stakes can be high, even harrowing, for the country. These sagas can be distressing to follow, but there’s no shortage of dark fascination. Stick around too long, and you risk losing control of the finale. It can happen to the best, and at the end of the most extraordinary careers.

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    Mark Leibovich

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  • ‘She’s Going to Be Famous for a Long Time’

    ‘She’s Going to Be Famous for a Long Time’

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    For many judicial nominees, a Senate confirmation hearing is one of life’s most grueling experiences—an hours-long job interview led by lawmakers who are trying to get them to face-plant on national television.

    Not for Aileen Cannon. When the federal judge who will oversee former President Donald Trump’s criminal trial testified in 2020, the Senate Judiciary Committee didn’t go easy on her so much as they ignored her.

    Cannon, then a 39-year-old prosecutor, appeared on Zoom alongside four other nominees, her face framed by a wall of diplomas on one side and an American flag on the other. Her opening statement lasted all of three minutes and sounded like an Oscar winner’s speech—lots of thank-yous and little else. She didn’t say a word about her legal philosophy or how she would approach the job of a judge. The senators didn’t seem to mind: None of them addressed a question specifically to Cannon for the rest of the hearing. The committee’s chair at the time, Senator Lindsey Graham of South Carolina, skipped the proceeding entirely, as did each of the five most senior Republicans on the panel. The hearing was over after barely an hour. Three months later, while Trump was beginning his effort to overturn his defeat in the presidential election, a bipartisan Senate majority (including a dozen Democrats) voted to confirm Cannon’s nomination as a federal judge in the Southern District of Florida.

    For low-profile nominations like Cannon’s, perfunctory hearings aren’t unusual. But the scrutiny she was spared in the Senate is coming her way now. After just two and a half years as a judge, Cannon will soon preside over a trial with no precedent in American history. The defendant is the former president who appointed her, and her rulings during the investigation that led to Trump’s indictment have already prompted many legal experts to fear that she will tilt the trial in his favor.

    But some of the Democratic lawyers who have appeared in Cannon’s courtroom don’t share those worries. They say that she is a smarter, more deliberate, and more even-handed judge than the early criticism of her would suggest. “I think the government should be very happy that they have Judge Cannon,” says Richard Klugh, a longtime defense attorney in Miami who has dealt with Cannon both as a judge and when she served as a federal prosecutor there. Klugh, a lifelong Democrat, told me that aside from her “narrow” rulings on Trump’s case last summer, he had heard no complaints about Cannon from either prosecutors or defense attorneys. “She’s very confident, very honest … and very thorough,” he told me. “She’s confident enough to go through things independently.”

    That may be, but she’s extremely inexperienced. Since taking her seat on the bench, Cannon has worked mostly out of a courthouse in Fort Pierce, a two-hour drive from Miami and a town that one local lawyer described to me as “a backwater.” She has presided over just four trials as a judge, none of which covered crimes remotely similar to the willful retention of classified documents that the government has accused Trump of committing. (She is set to oversee a far more complex trial involving alleged Medicare fraud in the coming months.)

    Cannon was born in Colombia and is the daughter of Cuban refugees. In her brief statement to the Judiciary Committee, she described how her mother, at the age of 7, “had to flee the repressive Castro regime in search of freedom and security.” Cannon graduated from Duke University, and by the time she earned her law degree from the University of Michigan, she had already joined the conservative Federalist Society. After law school, she embarked on a fairly conventional legal career: She clerked for an appellate judge, spent several years at a large law firm, and then became an assistant U.S. attorney in Miami. In written responses to the Judiciary Committee, Cannon wrote that she considered herself both an “originalist” and a “textualist”—two approaches long identified with conservative judges—but that she would follow all precedents set by the Supreme Court and other appellate rulings.

    Two South Florida lawyers told me that they were struck by Cannon’s overt religiosity, which has seeped into her pronouncements in court. She routinely tells defendants “God bless you” after they enter guilty pleas, said Valentin Rodriguez, a lawyer who has appeared before Cannon. “In my entire 30-year career I’ve never had a judge mention God to a client ever,” Rodriguez told me. “She does that as a matter of course.”

    Although presidents formally nominate all federal judges, they frequently appoint district-court judges at the recommendation of home-state senators. Cannon told the Judiciary Committee that she was first approached about filling a judicial vacancy by the office of Senator Marco Rubio in 2019, nearly a year before Trump sent her nomination to the Senate. Her appointment came at a moment when Trump and then–Senate Majority Leader Mitch McConnell were trying to reshape the federal courts by filling as many open judgeships as possible with young conservatives in their 30s and 40s. Three previous nominations for judgeships in Florida’s Southern District had gone to men in their 40s. “It made sense that Trump would select a woman with good credentials who also happens to be Hispanic,” a South Florida defense lawyer who knows Cannon told me. (The lawyer requested anonymity to speak candidly about a judge in their jurisdiction.)

    At the time of her nomination, Cannon had virtually no public profile outside of the courtroom. On her Senate questionnaire, she said she had never given a speech, served on a panel discussion, or testified before a legislative body. She had never held public office and told the Senate she had never participated in a political campaign, although she and her husband each contributed $100 to Ron DeSantis’s bid for governor in 2018. The only interview Cannon said she had ever given for publication was for a photo feature on TheKnot.com about her wedding. Her relative anonymity has caused headaches for publications that have searched in vain for a public photo of Cannon that hasn’t already been used repeatedly; almost every story features the same Zoom screenshot from her Senate testimony in 2020.

    Like most Republican-appointed judges in Florida’s Southern District, Cannon is known as a tough sentencer. But there have been notable exceptions when she has handed down a shorter prison term than she could have, Rodriguez told me. He mentioned a case in which a 21-year-old defendant, Artavis Spivey, who had been incarcerated on and off since he was 11, pleaded guilty to armed carjacking. He and another defendant committed the crime just 18 days after Spivey had been released from prison. Cannon sentenced Spivey to 15 years, but Rodriguez said she could have added many more years to his term. “She could have thrown the book at him, and I think she saw redeeming qualities in the young man,” Rodriguez said. Spivey had grown up in a troubled home without a father, “kind of given up by his parents,” Rodriguez added. “That experience tended to make me appreciate the fact that she could look beyond just the retribution and vengeance of a sentence and look at the person.”

    Cannon also handed down a lighter-than-expected sentence to a 34-year-old man, Christopher Wilkins, who threw a chair at and threatened to kill a federal prosecutor after receiving a 17.5-year sentence on gun and witness-tampering charges. Cannon added six and a half years to his prison term, which was less than the sentencing guidelines called for. “I’ve heard stuff about tough sentencing. I can’t report that. I can report fair sentencing,” Wilkins’s lawyer, Jeffrey Garland, a Republican, told me.

    Yet none of the decisions that Cannon has made in her young judicial career have stirred as much controversy as her rulings in the lawsuit that Trump filed after the FBI searched his Mar-a-Lago estate for unreturned classified documents last summer. Cannon initially appointed a special master to review the documents that federal investigators had collected, and barred the government from accessing some of them. The rulings were a gift to Trump at the time and delayed the FBI’s investigation. But in a sharp rebuke of Cannon, the conservative Eleventh Circuit Court of Appeals overruled her decisions and said she should not have even heard the case.

    Some legal experts have cited those rulings and the fact that Trump appointed Cannon as reasons for her to recuse herself or be taken off the case. A few of the Florida defense lawyers I interviewed—who, it should be noted, routinely argue against the government’s position—characterized Cannon’s orders as understandable considering how unprecedented the case was. The defense lawyer who spoke on the condition of anonymity, however, was more critical. “That ruling was totally out of bounds,” the lawyer told me.

    One of the most significant decisions Cannon now faces is whether to attempt to hold the trial in advance of the 2024 presidential election. Should Trump win the White House, he could quash the government’s prosecution of him. South Florida lawyers were dubious that Cannon could try the case before the election, noting the complexities surrounding classified documents that frequently slow down prosecutions at the federal level. Howard Srebnick, a Democratic defense lawyer on the Medicare-fraud case before Cannon, also praised her early performance on the bench. But he said that it still took 18 months for the Medicare case to get to trial even though it does not involve government secrets. “The notion that this case could go quickly? That’s absurd,” Klugh told me.

    Still, Cannon has already issued her first order—one that could indicate she wants to move swiftly. On Thursday, she instructed lawyers who want to take part in the case to get security clearances by next week. That was the first of many decisions Cannon will make that, in ways big and small, will shape the first-ever federal criminal prosecution of a former president. They will change Cannon’s life, creating a reputation for favoritism or fairness where none existed. A young judge whose photograph had never appeared in a newspaper until last year is set to become a household name. As Rodriguez observed with a slightly nervous laugh: “She’s going to be famous for a long time.”

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    Russell Berman

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  • A World Without Chuck Grassley in the Senate?

    A World Without Chuck Grassley in the Senate?

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    The long-serving Senator Chuck Grassley is, for lack of a comparison closer to home, Iowa’s Queen Elizabeth II. This is partly a matter of sheer longevity. At 89, the senator is older than John Deere’s first self-propelled combine, which appeared in 1947. He was 26 when Buddy Holly, Ritchie Valens, and the Big Bopper died in a plane crash in 1959. The year Kevin Costner filmed Field of Dreams in Dyersville, 1988, Grassley was 55.

    Age aside, Grassley is simply a part of Iowa’s political furniture—many voters in the state have never known a time without him. When I was born, in 1993, he’d been the state’s senior senator for 12 years; he has held elected office—first in the state House, then in the U.S. House and Senate—since my father was 4 years old. For many Iowans, the day when Grassley would not be their senator has been scarcely imaginable.

    Until now, maybe. Every six years, Iowa Democrats have inched closer to unseating the seven-term Republican senator. This time, they seem closer than ever: A recent poll showed Grassley leading 64-year-old Mike Franken only narrowly, suggesting that this will be Grassley’s toughest reelection fight in four decades.

    Twelve years ago, he defeated Roxanne Conlin by 31 points. In 2016, he beat Patty Judge by 24. This year’s race against Franken didn’t seem particularly newsworthy until earlier this month, when Selzer & Company, Iowa’s most respected polling firm, released results from a survey showing that Grassley was leading Franken by a mere three percentage points. “It says to me that Franken is running a competent campaign and has a shot to defeat the seemingly invincible Chuck Grassley—previously perceived to be invincible,” J. Ann Selzer, the president of Selzer & Company, told the Des Moines Register.

    The poll is only a snapshot in time, and it could certainly prove wrong. But it’s reasonable to assume, given other polling since then, that Franken is closer to unseating Grassley than any challenger before him. The most obvious reason for this is that Iowans may finally be noticing how old their senator is—a veritable crinoid in the creek bed of Iowa politics. Although Grassley seems healthy—he runs several miles each morning and kicks off campaign events by doing push-ups onstage—more than 60 percent of the Selzer poll’s respondents said his age was a real concern. “There are a lot of voters between 75 and 85 who think, I wouldn’t want to be in the United States Senate right now. I wouldn’t want to have that life; why does he?” Jeff Link, an Iowa Democratic strategist, told me.

    For the first time in the history of this particular poll, more Iowan respondents disapprove of Grassley’s job performance than approve of it. Pair that dissatisfaction with the fact that Franken is a strong candidate. A retired Navy vice admiral from deep-red northwest Iowa, the Democrat could provide a nonthreatening alternative for the independents and Republicans who are reluctant to give Grassley another term. Franken “is energetic, very smart—almost loquacious—but he knows what he’s talking about,” David Oman, a state Republican strategist and a former co-chair of the Iowa GOP, told me. Despite that positive assessment, the recent emergence of an assault allegation from a former campaign manager might cool Democrats’ enthusiasm. (Franken has denied the allegation, and police have closed the case, calling it “unfounded.”)

    Undergirding all of these factors is the plain reality that Iowa, like the rest of the country, is becoming more partisan and more polarized. For 30 years, Iowans sent both Grassley and a Democrat, Tom Harkin, who retired in 2014, to the Senate at every chance, no matter which party was in the White House or who was occupying the governor’s mansion. The consensus among Iowans was that such a balance was ideal. But the days of winning big by being part of that balance are over.

    Grassley has changed, too. Back then, he was viewed as a kind of farmers-first independent, interested chiefly in restraining federal spending, whistleblower protections, and promoting free trade. Democrats liked him—and often voted for him. In 1991, Grassley was one of just two Republicans to vote against the Gulf War. “That made him seem above partisanship,” David Yepsen, a former reporter for the Des Moines Register, told me. Grassley’s image, among Iowans, was of a man who operated above the partisan fray.

    That gloss began to wear off in 2009. At first, Grassley seemed a willing negotiating partner on President Barack Obama’s plans for health-care reform; he worked for months on a bipartisan bill. But he hadn’t bargained for how unpopular the Affordable Care Act would be with his party’s base. During a tour of central Iowa that summer, Grassley was mobbed by Republicans and Tea Partiers who rejected the plan. He buckled under the pressure, abandoned the talks, and ultimately voted against the final bill. “He’d never been treated that way by his own party. It changed him,” Yepsen said. “It made him mindful that there’s a new kind of conservative out there, a new generation coming on—the populists.” And he responded accordingly.

    In the ensuing years, Grassley came to recognize that there were fewer and fewer points to be earned by working across the aisle. In 2016, as the chair of the Judiciary Committee, he was party to the Senate’s refusal to give Obama’s Supreme Court nominee Merrick Garland a hearing, and along with Republican leadership, he held open more than 100 seats on the federal bench during the final months of the Obama administration for Donald Trump to fill. “You can’t underestimate Democrats in Iowa watching his leadership in the Judiciary Committee putting all these conservatives on the Court, and seeing them now do their thing on the Dobbs decision,” Yepsen said. “Conservatives love it. But it makes him much more of a partisan.”

    Whether Grassley would support the candidacy of Donald Trump was initially an open question. The womanizing, scandal-plagued Republican presidential nominee seemed, after all, to be the Iowa senator’s bizarro opposite. Yet Grassley, like most others in the GOP, fell in line. He has stuck by Trump through vulgar comments and allegations. In 2019, Grassley—an actual author of the 1989 Whistleblower Protection Act—defended Trump’s firing of the whistleblower and impeachment witness Alexander Vindman. Lately, Grassley has broken from his party only a handful of times, including to gently push back on some of Trump’s “America First” protectionist trade policies and to support the 2021 bipartisan infrastructure bill. The senator seems altogether untroubled by Trump’s effort to discredit the 2020 election, and continues to appear alongside him at rallies.

    “The way that [Grassley] didn’t stand up for much of anything is emblematic of the Republican Party in the years of Trump,” Bill Kristol, the editor at large of The Bulwark, told me. “People you thought would be independent just ended up going along.”

    Nowadays, the way Iowans view Grassley simply reflects their politics, not some old-timey desire for balance and comity. Democrats see him as an utter disappointment—a caricature of the man they may once have disagreed with but at least respected. Some Republicans are pleased with the careful line he’s walked, embracing Trump while hanging on to moderates. For other Republicans, Grassley is not nearly MAGA enough. This year, for the first time in his Senate career, Grassley faced a primary challenger. Jim Carlin, a state senator who has criticized Grassley for voting to certify the results of the 2020 election, earned 26 percent of the primary vote.

    Given this transformation in how Iowans regard Grassley, defeat at the hands of a Democrat is more plausible than it’s ever been. More plausible, but still not likely. The Selzer poll may have given Franken a jolt of momentum, including a burst of Hail Mary fundraising, but the state is reddening and the gap in party registration is wide and growing: The Iowa GOP has roughly 88,000 more registered voters this year than the Iowa Democratic Party, according to the Iowa secretary of state’s office. In 2020, that advantage was only about 20,000. This gap, combined with the historical precedent of higher Republican turnout in off-year elections, seems likely to add up to a Grassley victory. The numbers are “hugely problematic,” Jeff Link, the Democratic strategist, said—even for a three-star admiral.

    A world without Chuck Grassley in power is one in which most Iowans have never actually lived. That may be why “Faith in adversity” has recently become the unofficial motto of the state’s Democrats. This year, they even decided to put it on a sign. Orange placards dapple grassy lawns throughout Iowa, each bearing a message of hopeful conviction—We believe Michael Franken will defeat Chuck Grassley, the signs say—as though they can speak such a mammoth upset into existence.

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    Elaine Godfrey

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