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He has instigated some of the most memorable hearings of the past quarter-century: In 1994, when all seven tobacco company chief executives declared under oath that nicotine is not addictive; in 1982, when he held the first congressional hearing on AIDS (before the disease was even called that); and in 2005, when he proposed hearings on steroid use in professional baseball. Now Rep. Henry Waxman, the 17-term Los Angeleno who represents one of the country’s wealthiest, most Democratic districts, is back in charge after a 12-year GOP run. He will replace Rep. Tom Davis (Va.) as chairman of the Committee on Government Reform when Democrats formally take control of the House next January. And trust this — while Waxman’s been in the minority, he’s been taking names. That, in turn, has the lawyers who represent witnesses in congressional oversight hearings salivating at the prospect. Waxman, 67, is one of at least a trio of seasoned Democrats who will take over committees that have traditionally pursued high-profile muckraking. Perhaps the most famous is 80-year-old Rep. John Dingell (Mich.), who will return as chairman of the House Committee on Energy and Commerce, which in the 1980s and early 1990s held high-profile hearings on Defense Department cost overruns, the drug industry, and junk-bond trader Michael Milken. “There are going to be investigations, I’m sure of that,” says Michael Barrett Jr., a solo practitioner who spent 10 years as Dingell’s chief counsel and staff director for the panel’s Oversight and Investigations Subcommittee. “I got a call from somebody before the election and a call from somebody since,” he adds, refusing to identify the potential clients. Says Thomas Ryan, a former chief counsel to the Energy and Commerce Committee in the 1980s, “I don’t see any shortage of opportunities here. “I think it’s going to be a Congress-wide effort,” adds Ryan, a lawyer with Ryan, Phillips, Utrecht & MacKinnon. “There’s a hell of a lot of oversight on contracting on the [Iraq] war and everything else that’s been done over there.” Congressional staffers on each committee insist there is no firm agenda, at least not yet. But besides Iraq-related investigations, mercurial gas prices — and oil-company profits — are also a good bet for an investigation.
Judicial Nominations May End Up Gridlocked
Of all the consequences of last Tuesday’s midterm election, Democratic control of the Senate Judiciary Committee, where judicial nominations start — and sometimes end — may ultimately result in the most dramatic change from the years of Republican rule.Justice John Paul Stevens might be the reason why.Although the 86-year old liberal justice has shown no signs of slowing down — indeed, in recent years, he has been one of the Court’s most dominant players — and given no indication that he wants to step down, he will be 88 years old when the next president takes office.Indeed, a new wave of Stevens retirement rumors broke out just before the Nov. 7 elections. And with the Judiciary Committee now changing over to a Democratic majority, it will be difficult, if not impossible, for President George W. Bush to nominate a potential replacement for Stevens who is too far to the right — or to simply avoid a Democratic Senate by refusing to nominate a replacement at all.“If there is a vacancy on the Supreme Court, it will be harder to say, �Gee, golly, I won’t fill it,’ ” notes David Hoppe, former chief of staff to Sen. Trent Lott (R-Miss.).That’s not necessarily the case with six controversial federal circuit court nominees, whose names were returned to the White House ahead of the Senate’s lengthy election break. Under Senate rules, nominations that are neither confirmed nor rejected must be returned to the White House if the Senate is going to recess for more than 30 days. This formality can be avoided only if there is unanimous consent. There’s no guarantee that Bush will send the six names back to the Senate — “We don’t speculate on the nominee process,” says White House spokeswoman Emily Lawrimore — but if Bush remains true to form, they will be returned as soon as the Senate reconvenes later this month. What happens then might be exactly what’s happened so far: nothing. William Myers and Terrence Boyle, nominated for the U.S. Court of Appeals for the 4th Circuit, were voted out of the Senate Judiciary Committee more than two years ago but have not yet been voted on by the full Senate. There’s little reason to think that that will change in the lame-duck session.“If the Republicans were in a position to get them confirmed, they would have done it before,” says David Yalof, a political science professor at the University of Connecticut who studies judicial nominations.Randy Smith, nominated for a seat on the 9th Circuit; William Haynes II, for the 4th Circuit; and Peter Keisler for the D.C. Circuit have all had hearings but not been voted on by the committee. And Michael Wallace, nominated for a seat on the 6th Circuit, is still awaiting his turn before the committee.It is unclear whether Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) plans to have a vote on any of the remaining nominees, assuming the White House sends them back. But if their nominations are returned after Vermont Democrat Patrick Leahy takes over the committee in January, there’s a good chance they may never get out of committee, Yalof says. “Their fate comes down to this: The leverage shifts, and what the Democrats want, in my opinion, more than anything else in the world, is slots. The last two years of a presidency is not ideology, it’s slots,” says Yalof.The more judicial slots that Senate Democrats keep open, the more nominees a possible Democratic president elected in 2008 will be able to name, Yalof says.That, of course, is not an option if Stevens must be replaced before then. Former Stevens clerk Joseph Thai says he thinks Stevens will do all he can to avoid having his successor picked by a president he believes did not legitimately win the 2000 presidential election. In Bush v. Gore, which determined the outcome of the 2000 election, Stevens wrote a scathing dissent. “He will not let Bush pick his successor if he can help it,” says Thai, a professor at the University of Oklahoma. “I suspect that Stevens will not allow the legacy of the most illegitimate decision during his tenure, from his viewpoint, to extend to the choice of his replacement on the Court.”Thai believes Stevens will only retire when he feels that he is no longer fit to do the job. Right now, he adds, “Stevens appears to be as fit as ever mentally and physically. He’s also at the top of his game jurisprudentially.”— T.R. Goldman, Supreme Court correspondent Tony Mauro contributed to this report.

Also, expect more aggressive oversight from Detroit Democrat Rep. John Conyers, 77, who takes over the House Judiciary Committee when he begins his 43rd year in Congress in January. And Massachusetts Democrat Rep. Barney Frank, 66, will chair Financial Services, which has jurisdiction over predatory lending and the credit-card industry. New chairmen in the Senate — in particular, Vermont’s Patrick Leahy, 66, a 32-year veteran who will take over the Judiciary Committee — are also expected to focus once again on certain aspects of the war on terrorism, including habeas corpus rights for Guant�namo Bay Naval Base detainees and the termination of the Iraq Inspector General’s Office, which is slated to close next September. The Senate also boasts its own Permanent Subcommittee on Investigations, part of the Committee on Homeland Security and Governmental Affairs. It will be headed by Michigan Democrat Carl Levin, 72, who at a minimum is likely to continue his ongoing scrutiny of gas prices, money laundering, and tax shelters. A PAIR OF LIONS But it is Dingell and Waxman who have the most investigative experience and are attracting the most attention from veteran defense attorneys. “Dingell has been around longer, and he’s a bit more senatorial,” notes Stanley Brand, who was counsel to the House of Representatives from 1976 to 1984 and now has his own law firm. “Waxman’s a little less so. Stylistically, they are different. Waxman’s a little more bombastic, and I don’t mean that in a negative sense. He’s just a little hotter. Dingell is very methodical.” Waxman’s Government Reform Committee also has the biggest brief on the Hill, with a jurisdiction that covers anything involving the government. And taking a page from the commerce clause, which Congress has long used to justify its legislative involvement in virtually any aspect of daily life, the committee’s oversight function also touches on the business and commerce of Americans as well. In reality, says Chief of Staff Philip Schiliro, Waxman tends to focus “on issues that matter to people in everyday life,” which helps explain the tobacco hearings and another series of hearings Waxman held in the late 1980s, which led to mandatory food labeling for nutritional requirements. In that context, says ex-Commerce Committee counsel Ryan, aside from the foreign-policy aspects of Iraq, “there’s the competence of the private sector and the role of the administration in ensuring that taxpayers get their money’s worth.” Congressional hearings serve several purposes, but publicizing a particular subject — not necessarily establishing a fact-based record — is often at their heart. “Woodrow Wilson, when he was a professor of political science at Princeton, used to say that Congress in its committees is Congress at work, and that the informing function of Congress is to be preferred to its legislative function,” says Charles Tiefer, a former deputy House counsel who is now a professor himself at the University of Baltimore law school. KANGAROO COURTS? Indeed, it’s often questionable whether hearings are more about informing the public or providing free publicity to the committee members, most of whom have a sketchy command of the facts and already know the particular story line they expect to follow, according to several lawyers who have represented business executives testifying on the Hill in the past. “No lawyer who’s being honest will say he’s going in to get a fair hearing,” says one defense attorney who asked that his name not be used. “They’re very inefficient, and while they could be good vehicles for ascertaining the facts for either oversight or legislative purposes, they are all structured in a way to give maximum exposure to individual members. As a general rule, the committees are searching for facts to support a position they’ve already taken.” Robert Bennett, the Skadden, Arps, Slate, Meagher & Flom lawyer who has represented clients in front of congressional committees for years and was a former special counsel to the Senate ethics committee during the Keating Five hearings in the early 1990s, says a certain fervid atmosphere is almost always there from the start. “It’s a very frightening experience,” he says. “Instead of just being in a federal courtroom where there are no cameras, the witness goes in, raises his hand, is being photographed repeatedly, C-SPAN is taking it all down. The questions are very often �When did you stop beating your wife?’ and then on the evening news in each local jurisdiction, that particular representative’s questions are focused on. “The advice most experienced lawyers give is: �You’re going to go in, take your hits, don’t lose your temper, and make sure you get your couple of themes out there. We’ll put them in our opening statement.’ “It’s a damage-control situation,” he notes.Adds Jack Quinn, co-chairman of Quinn Gillespie & Associates and former White House counsel in the Clinton administration: “It’s like going into a cold shower. You want to get in, get clean, and get out as quickly as possible.” And avoid the often-unforeseen damage that can come from testifying under oath. “You have to be worried about collateral prosecution for perjury and false statements or obstruction,” notes former House counsel Brand. Whatever their failings as investigative tools, and despite the damage a congressional hearing can bring down upon an individual, they often do serve as useful legislative catalysts, especially, notes Tiefer, in the final two years of an eight-year presidency. “Looking back in an administration’s final two years reveals the need for reform and helps push at least modest legislation,” says Tiefer. “Congressional investigations in the last two years of the Reagan presidency both cleaned up after the Iran/Contra scandal and gave a boost to legislation that had not moved in previous years on subjects such as trade to immigration reform to the environment. “Oversight boosts legislation,” says Tiefer, “by building public support for action.”


T.R. Goldman can be contacted at [email protected].

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