There is no doubt that Elena Kagan has exemplary academic and professional credentials. And she has been a pioneer for women, serving as the country’s first female Solicitor General and as the first woman to be Dean of Harvard Law School. I applaud the President for nominating someone who has a varied and diverse background outside the circuit court of appeals.

I voted against her for Solicitor General because she wouldn’t answer basic questions about her standards for handling that job. It is a distinctly different position than that of a Supreme Court Justice.

I have an open mind about her nomination and hope she will address important questions related to her position on matters such as executive power, warrantless wiretapping, a woman’s right to choose, voting rights and congressional power.

The likely reason for Specter’s change of heart is that not only is he now a Democrat, but he’s stuck in a tough primary against Rep. Joe Sestak (D-PA), who has picked up significant progressive support and has a slight lead in the polls. Sestak is already hitting Specter for his original vote against Kagan. “I expect Sen. Specter may backtrack from his earlier vote on Ms. Kagan this week in order to help himself in the upcoming primary election, but the people of Pennsylvania have no way of knowing where he will stand after May 18,” said Sestak.

As the National Review explains, “But the political realities for Specter have changed. As Obama campaigns for him and helps him in his fight in an upcoming Democratic primary, it appears to be a safe bet that, in the end, whether a nominee is responsive or not, the Pennsylvania senator will vote ‘aye’ to confirm the president’s choice to fill Stevens’ seat.”

However, some of the seven Republicans who backed Kagan for Solicitor General are now leaning the other way, leaving themselves open to possibly voting against her confirmation. From a statement by Sen. Orrin Hatch (R-UT):

Now that the President has nominated Elena Kagan to replace Justice Stevens, the Senate must thoroughly and fairly evaluate her qualifications to be a Supreme Court Justice. Judicial qualifications go beyond legal experience; any Supreme Court nominee should have an impressive resume. The more important qualification is judicial philosophy and a nominee’s understanding of the power and proper role of a Justice in our system of government.

I will examine Ms. Kagan’s entire record to understand her judicial philosophy. My conclusion will be based on evidence, not blind faith. Her previous confirmation, and my support for her in that position, do not by themselves establish either her qualifications for the Supreme Court or my obligation to support her. I have an open mind and look forward to actively participating in the confirmation process.

Hatch previously called Kagan “brilliant,” but as the Salt Lake Tribune points out, he appears to now be trying to downplay that remark. Sen. Jon Kyl similarly said that “a temporary political appointment is far different than a lifetime appointment to the Supreme Court.” Maine Republican Sens. Olympia Snowe and Susan Collins, who also both voted for Kagan, have both put out statements simply stating that they look forward to questioning Kagan. Sens. Tom Coburn (R-OK), Richard Lugar (R-IN), and Judd Gregg (R-NH) have not yet put out statements.

With all of these issues at a standstill, tensions are growing between the two chambers. Several House lawmakers have voiced frustration with Sens. Joe Lieberman (ID-Conn.) and Ben Nelson (D-Neb.) over concessions and special deals they cut in the Senate version.

“The Senate is just a pain in the ass to everybody in the world as far as I can tell. I’m so angry that I just wish from now on that we’d just find out what it is that Lieberman and Nelson will let us have,” the senior lawmaker said. “But we’re not giving up on anything in the House.”

“We keep hearing them squeal like pigs in the Senate that they had a tough time getting to 60,” Weiner said. “Well, it wasn’t particularly a picnic for us to get to 218. Generally speaking, the Senate kabuki dance has lost its magic on those of us in the House.”

Last month, Sen. Arlen Specter (D-PA) harshly criticized the gridlock of the Senate. “This body prides itself on being the world’s greatest deliberative body,” Specter said. “That designation has been destroyed with what has occurred here the past few days.” Matt Yglesias argued at the time that “the Senate has always been problematic” because it began as “a special house of the legislature designed to undermine democratic accountability.”

After voting ‘pass’ (which means no position) in the Judiciary Committee, I had a second extensive meeting with Ms. Johnsen and have been prepared to support her nomination when it reaches the Senate floor.

Spencer Ackerman notes that Republican Sen. Dick Lugar (IN) has also said he is standing by his support for Johnsen, meaning she has the 60 votes necessary to be confirmed.

STEELE: So, all the talk and chatter right now means nothing because my job is determined by whether I do those two things. And I’m happy to do it and I’m around the country. You know, I’ve got this period — I wrote this book before I became chairman and as, because of the clock and the calender, I wind up doing it now. But when you read the book, it is a blueprint for how we move forward. I really believe that. It touches on those things that we lost track of. We can get them back. And we can go forward in a principled way and stand on those conservative principles and win again. We saw that in New Jersey and Virginia.

Listen here:

Steele’s claim that he wrote the book before he was elected to head the RNC on Jan. 30, 2009 is a bit odd considering that it contains many references to events that have happened after his election. For instance, Steele’s book talks about the NY-23 special election, an Obama administration cost estimate that was made public in September 2009 and Sen. Arlen Specter’s (D-PA) April 2009 party switch.

Arlen Specter brings some real talk:

Whatever the cause, things have gotten bad enough that Senator Arlen Specter, Democrat of Pennsylvania, said the Senate should be stripped of one of its illustrious institutional claims.

“This body prides itself on being the world’s greatest deliberative body,” Mr. Specter said. “That designation has been destroyed with what has occurred here the past few days.”

The truth of the matter is that the Senate has always been problematic. Like the health care bill, the United States Constitution was the result of pragmatic political compromise. That entailed excepting some truly odious compromises—like the existence of chattel slavery. Less odious, but similar in spirit, was giving in to hardball politics from the likes of Delaware and accepting the principle that there should be a special house of the legislature designed to undermine democratic accountability. A few decades down the road, the Senate emerged as the stronghold of the antebellum “slave power.” Henry Adams wrote early in the 20th century that “The most troublesome task of a reform President is bringing the Senate back to decency.” Soon after, the Senate became the place where anti-lynching bills went to die, then later the place where civil rights legislation went to die.

At root, the senate is a bad idea poorly implemented. And though I don’t expect the fundamental nature of Senate malaportionment do change, it’d be nice if Senators from underrepresented states like Pennsylvania would at least acknowledge that the whole thing is root-and-branch problematic.

Shorter than that, real legislators don’t just whine, they act to change senate procedure. The two main things are the need to curb filibustering, and to alter caucus rules about committee chairmanships. The Republicans have term limits for their chairmen, which means that after you serve for a certain number of years you need to ask your colleagues to elect you to a new post. That, in turn, means that there’s a constant, systemic incentive for members not to pull lone wolf stunts that are bad for everyone else in the caucus. Those changes would turn the Senate into something more like a regular legislative body, albeit one with a strange electoral base and questionable democratic legitimacy.

Later, during a conference call with progressive bloggers, Sen. Arlen Specter (D-PA) was asked if, given Lieberman’s position, he would support using the reconciliation process to pass health care reform with a public option, which would require a mere simple majority for passage. Specter said that he might eventually but added that he thinks the Democratic caucus will get 60 votes:

SPECTER: Well as I have said I would consider that as a last, last, last, resort. I think that the institutional safeguard of 60 votes is a very important one. … [M]oving away from that institutional 60 votes is something I think would be a last, last, last resort. You might have to fight fire with fire when there are so many filibusters. The number is now 81. And a lot of nominations are being blocked and action is being blocked. …

On the issue of fighting fire with fire, maybe so, but I think that we are not going to come to this. I think we can muster the 60 votes and not have to face the reconciliation.

Q: Senator if I have this correctly, as a last resort, you would not oppose using reconciliation…

SPECTER: As a last, last, last, resort I would consider it, yeah.

Specter later said that Lieberman is “not going to want to see reconciliation used,” adding, “I think it’s gonna work out.” Listen here:

In fact, the top two Democrats in the Senate, Majority Leader Harry Reid (D-NV) and Majority Whip Dick Durbin (D-IL), have not taken reconciliation off the table in order to pass health care reform. “Sure, it’s always an option,” Reid said on Monday. “The failsafe on this is reconciliation,” Durbin said, but added, “I hope we don’t reach it because you can only do a limited amount of things on reconciliation.”

On the Republican side, it’s no, no, no. A party of obstructionism. … You have responsible Republicans who had been in the Senate — like Howard Baker, Bob Dole, or Bill Frist — who say Republicans ought to cooperate. Well, they’re not cooperating.

Watch it:

Specter also indicated he would fight hard for the public option. “I’m not prepared to recede at all. I think the public option is gaining momentum,” he said. “I am not going to step back a bit. I am going to fight for the best public option.”

On Fox News yesterday, Abram said that she was worried about a future where toilet paper was rationed, saying, “I know that years down the road, I don’t want my children coming to me and asking me, ‘Mom, why didn’t you do anything? Why do we have to wait in line for, I don’t know, toilet paper or anything?’”

At a town hall held by Sen. Ben Cardin (D-MD) yesterday, ThinkProgress’ Amanda Terkel overheard at least one person yelling out, “Obama’s not even a citizen!”

Stoneridge involved an elaborate scheme which a cable company called Charter Communications allegedly set up to trick investors into believing that its cash flow was much higher than it actually was.  As the Supreme Court explained the scheme:

Respondents [Scientific-Atlanta and Motorola] supplied Charter with the digital cable converter (set top) boxes that Charter furnished to its customers. Charter arranged to overpay respondents $20 for each set top box it purchased until the end of the year, with the understanding that respondents would return the overpayment by purchasing advertising from Charter. The transactions, it is alleged, had no economic substance; but, because Charter would then record the advertising purchases as revenue and capitalize its purchase of the set top boxes, in violation of generally accepted accounting principles, the transactions would enable Charter to fool its auditor into approving a financial statement showing it met projected revenue and operating cash flow numbers.Respondents agreed to the arrangement.

So Scientific-Atlanta and Motorola, agreed to overcharge Charter for an asset that Charter’s books would value at the inflated price, and also to overpay for advertising with revenues that Charter could account for as sales.  The result was a ledger which inflated Charter’s paper value without actually requiring Charter to earn any more money.

This kind of deception is illegal under federal securities law because it fools investors into investing in a company which is far less sound than its books suggest.  Stoneridge, however, held that companies which assist other companies in defrauding their investors are immune from private suits.  Considering that many companies who engage in Enron-style tricks do so because they are trying to hide their impending collapse, if more solvent companies who enable fraud are not accountable under the law investors are left with no one to seek compensation from when their stock becomes worthless.

Specter’s bill would fix this problem by allowing suits against anyone who provides “substantial assistance” to a company which defrauds its investors.  Hopefully, bills like this one will not only become law, but they will send a clear message to the Supreme Court to stop holding that corporate interests are immune from the law.

In response to the column, Specter wrote a Letter to the Editor claiming that his stance on EFCA has been consistent:

I have no hesitancy in stating my own views. I have voted to have the Senate consider the modification of labor law to reform the way unions are certified and to provide procedures for negotiating first contracts. Earlier this year, I made a floor statement opposing giving up the secret ballot and suggesting the last-best-offer procedure on arbitration. My views on this subject have been consistent, and suggestions to the contrary by those intending to run against me are incorrect.

As Dan Hirschhorn at PA2010.com pointed out, “only Specter knows what his true views are, and while they may be consistent, his actions on the legislation have been anything but.”

Indeed, Specter was a co-sponsor of the bill and voted for cloture when the Senate considered it in 2007. However, earlier this year (before switching parties), Specter took to the Senate floor to announce that he would vote against cloture. Even after the party switch, Specter released a statement emphasizing that “my position on Employees Free Choice (Card Check) will not change.”

But last month, Specter addressed a crowd of union activists and told them “I believe you’ll be satisfied with my vote on this issue.” So the only thing Specter has really been consistent on is a consistent willingness to wobble back and forth on the issue.

Cross-posted on The Wonk Room.

As far as the Specter-Sestak race, I have no idea which way this cuts. But it highlights the importance of robust electoral threats to making a political movement effective. Senators of either party who, like Chuck Grassley or Ben Nelson, perceive a clear electoral threat to their right but no threat to their left will tend to drift right. But put a real from-the-left threat into play, and suddenly voting records change.

Learning to love big government.

Brian Beutler reports that at yesterday’s health care rally, Arlen Specter (D-PA) embraced the public plan that he’d opposed just a few months ago:

Speaking moments ago to a large and animated crowd of union organizers and health reform advocates in a brewing house just North of the Capitol, Sen. Arlen Specter (D-PA) said he supports a public insurance option.

“Schumer has it right about having a public component,” Specter said.

I wrote a little while ago for The Daily Beast about the beneficial impact of primary campaigns on a political movement’s efficacy. And I think you can see that in the Specter-Sestak competition in Pennsylvania. Thus far, Joe Sestak hasn’t picked up much steam. But that’s okay, you just need a situation in which Specter is determined not to give Sestak an opening to set up a positive dynamic.

I compliment you on your tenacity and your determination and your passion. I agree with you that health care is a right. … I do believe that there will be health care legislation. I know you are very interested in the public component and I think Senator Schumer has the right idea about having a public component which is to have a level playing field with the private sector, but the public component can be in place. [...]

Your enthusiasm has a big effect on what goes on three blocks away on the Congress of the United States. And you will get health care.

Previously, Specter opposed the creation of a public option. In May, NBC’s David Gregory asked Specter if he would support health care reform that included a public component. “No,” Specter replied.

The Tweet was deleted after just a few minutes, but it can still be accessed via Tweleted. The next tweet from Sen. Specter simply noted that he, Rep. Joe Sestak (D-PA), and Rep. Mike Doyle (D-PA) spoke at a labor rally in Pittsburgh. ThinkProgress contacted Specter’s Senate office about the deletion, but a spokesperson said that the campaign was responsible for the Twitter page. We have not yet received a response from the campaign staff.

Hot scoop from Brian Beutler who reports that Rep Joe Sestak (D-PA) is readying a primary challenge against Arlen Specter (D-PA):

Rep. Joe Sestak (D-PA) is privately telling supporters that he intends to run for Senate, TPMDC has confirmed.

“He intends to get in the race,” says Meg Infantino, the Congressman’s sister, who works at Sestak for Congress. “In the not too distant future, he will sit down with his wife and daughter to make the final decision.”

Party leaders, and especially outfits like the DSCC, tend to be highly primary averse. But I think there’s little in the way of solid evidence that primaries are bad for a political party. Of course under certain circumstances primary challenges can be destructive—as when a party’s base demands ideological orthodoxy in a district or state that an orthodox candidate can’t win—but neither Sestak nor Specter is a down-the-line liberal, and Pennsylvania’s a left-of-center state so from a progressive point of view it strikes me as desirable that there be some competition for the nomination.

But on CNN today, Boehner acknowledged that members of his own party, such as Rep. Pete Hoekstra (R-MI), have previously accused the CIA of lying to Congress. Pressed by Wolf Blitzer, Boehner did not disagree with Hoekstra’s allegation that the CIA lied to Congress in a previous case:

BOEHNER: Pete Hoekstra did say that. And the Inspector General at the CIA did an investigation and it became clear that some CIA operatives did in fact cover this up. This is not, we’re talking about two different issues here. All the facts in this case are on the table and the truth is now known to all, to everyone.

BLITZER: So, based on what you know on that case involving Hoekstra, the case he was interested in. Do you agree that the CIA then lied to Congress?

BOEHNER: I know as much about this case as Pete Hoekstra does and the Inspector General did in fact do an investigation, produced a report and frankly supported, I think, Pete’s claims.

Watch it:

As Boehner’s acknowledgment makes clear, the idea that the CIA could potentially mislead Congress is not beyond the realm of possibility. In fact, in a speech today, Sen. Arlen Specter (D-PA), a former chairman of the Senate Intelligence Committee, argued that “the CIA has a very bad record when it comes…to honesty. It goes back a long time.” He supported his point by citing “a handful of examples in the past where the CIA has withheld key information from Congress.”

Transcript:

BLITZER: Last year, the ranking Republican on the House Intelligence Committee, Pete Hoekstra of Michigan, he said this in response to a case that he was watching very closely, an American citizen who was killed in a plane crash, a cover up-alleged involving the CIA. He said these words: “We cannot have an intelligence community that covers up what it does and then lies to Congress.” That’s what Pete Hoekstra said in 2008.

BOEHNER: Pete Hoekstra did say that. And the Inspector General at the CIA did an investigation and it became clear that some CIA operatives did in fact cover this up. This is not, we’re talking about two different issues here. All the facts in this case are on the table and the truth is now known to all, to everyone.

BLITZER: So, based on what you know on that case involving Hoekstra, the case he was interested in. Do you agree that the CIA then lied to Congress?

BOEHNER: I know as much about this case as Pete Hoekstra does and the Inspector General did in fact do an investigation, produced a report and frankly supported, I think, Pete’s claims. And all we’re trying to do here in both cases is to get to the bottom, and get to the truth. And it’s the truth that we want here. And the fact is is that CIA director Panetta issued a very strong letter to Speaker Pelosi, making it clear that in his opinion they did not mislead her or lie to her. And so I want to either see the documents or see the speaker apologize.

I appreciate that there are some basic political truths that are awkward for most politicians to actually utter. But one reason that it’s good to have some politicians around who are worried about their left flank, is that you can get this sort of thing from Arlen Specter (D-PA):

“The CIA has a very bad record when it comes … to honesty. It goes back a long time,” Specter said in a speech before the American Law Institute at a Washington hotel.

The Republican-turned-Democrat listed a handful of examples in the past where the CIA has withheld key information from Congress.

“It’s a real problem as to how you get the information,” he said.

Right on. Not that we should be acting like the CIA is just somehow full of dishonest people. But it’s an agency that’s well-equipped to do things in secret. Sometimes presidents like to use it because they want to do something legitimate that requires secrecy. But the secrecy capabilities are also useful if you want to do something that’s illegal or immoral. Like torture people. But when the CIA is being asked to do illegal and immoral things in order to keep them secret, that naturally tends to extend toward keeping congress in the dark. There are many historical instances of this, and it shouldn’t surprise anyone if the CIA’s briefings on the Bush torture program turn out to have been less-than-thorough.

Good for Specter.

This is a very interesting political development, but it still leaves us with an entirely unanswered question: what’s the reason for Specter’s opposition to Johnsen? The objection opponents have raised is that she’s somehow too stridently pro-choice. But Specter’s pro-choice. And always has been, even as a Republican. When Specter initially made his opposition to Johnsen known, the reason was that he was trying to fend off a primary challenge from Pat Toomey by embracing all manner of wingnuttery. What’s the reason now? Why can’t a pro-choice Democratic Senator vote “yes” on a pro-choice Democratic President’s nomination of a pro-choice Democrat to a Justice Department position?