As Vice President Joe Biden's staff continues his PR offensive to make it clear he and his senior aides will be critical to the confirmation of Supreme Court nominee Sonia Sotomayor, lost is the far greater influence to the process: Judiciary Committee staff director and key legal counsel to the committee chairman, Sen. Patrick Leahy, Bruce A. Cohen.
Cohen, who earlier in his career worked with Arlen Specter in a Philadelphia law firm and followed Specter to Capitol Hill when the "new Democrat" was elected to the Senate, is considered the key driver for the Democrat majority on the Senate committee. Over the years he has waged battles over Republican court nominations, such as appeals court nominee Priscilla Owens. Current and former Judiciary Committee staff say that Cohen was also influential in maintaining support among Democrats on the committee to filibuster George W. Bush nominees to the court of appeals: Janice Rogers Brown, an African-American jurist, and Miguel Estrada, a jurist of Hispanic heritage. Brown was later confirmed to the D.C. Court of Appeals after a two-year filibuster. Estrada withdrew himself from the nomination process.
"The key argument that Cohen and others made was that to allow either on the D.C. Court of Appeals would be an acknowledgement that either was acceptable to Democrats as a potential Supreme Court nominee down the road," says a former Democrat staffer on Judiciary. "Bruce was important to that two-year filibuster; he kept the Senators in line, held a lot of hands when Republican pressure increased."
Cohen, who on several occasions has turned down opportunities to be nominated to the federal bench, is not-so-jokingly called "Leahy's Brain." "Senator Leahy can be petty and vindictive and highly partisan," says the former staffer. "Cohen gives him the legal and parliamentary rationale to be all those things within the rules of the Senate."
Cohen, however, isn't without his own issues. He is married to Mary Louise Cohen, a name partner in Phillips & Cohen, one of the leading firms in the country for False Claims Act litigation, in which an individual who is not affiliated with the government can file a legal claim against federal contractors claiming fraud against the government. Her firm has won or settled cases in the hundreds of millions of dollars. One of her most high-profile cases was an almost $1 billion dollar suit against TAP Pharmaceuticals over Medicare fraud claims.
Last month, the Judiciary Committee stripped an amendment from the Fraud Enforcement and Recovery Act (signed on May 20th) that would have capped False Claim Act awards. Judiciary staff said that Leahy was one of the most vocal in demanding that the amendment be stripped from the legislation, but staffers interviewed declined to discuss who else was involved in the decision. They did say that it was unclear whether Cohen ever recused himself from working on the legislation.
On the other side of the aisle, there are concerns about Sen. Jeff Sessions' ability to lead an aggressive fight against Sotomayor. While Leahy has split funds to cover research and other expenses related to the confirmation 50-50, Sessions has built the anti-thesis of Leahy's staff. Where Cohen serves as both staff director and chief legal counsel, Sessions, according to sources, has hired four different people to fill slots that Leahy has filled with just two, Cohen included. Already, Sessions has called for Republicans to be more conciliatory in their remarks about Sotomayor by dropping the charges of racism against some her comments.
"Sessions has to be given a chance; he's hired good people with solid conservative credentials," says a former Republican staffer on Judiciary. "He understands what's at stake, and he understands that he has to fight for a vision of the court that most Americans support, and that isn't the vision shared by Democrats on the committee, or Sotomayor, for that matter."
SHUT UP ALREADY
Quietly late Friday, Norm Eisen, Special Counsel to the President on Ethics and Government Reform, released new federal rules that barred public comments from any and all individuals with interests in the federal stimulus funding program. Already federally registered lobbyists are barred from making public comments about stimulus programs they or their clients might be interested in, and which may influence those federal officials determining where those stimulus dollars go.
Now, the White House is barring public comment from any individuals who might have an interest in the stimulus funding. According to government ethics lawyers, this rule could extend to a corporate official making a public speech in Washington, D.C. that might garner extensive press attention.
Eisen claims that the decision to muzzle public discourse on the stimulus funding was made with input from the Office of Management and Budget. What Eisen doesn't say is that the Department of Justice suggested that such a rule might not pass a legal smell test. "We advised against the White House's decision," says a career staffer in the DOJ's Office of Legal Counsel. "It's an ambiguous rulemaking, and based on our input previously on such issues, it appears to be intentionally so."
Three months into the almost trillion-dollar stimulus spending plan, the Obama Administration is running into issues with the program. Already, the administration has been caught overstating the economic impact of the overall program, as well as lying about funding. In one situation, White House spokesman Robert Gibbs had to admit that a much-touted D.C. housing project had received next to no federal stimulus dollars, as the administration had previously claimed.
As well, in some cases, hundreds of billions of stimulus funding will not be made available until mid-2010, a time when President Obama has claimed the U.S. economy will be growing. "In my view, that is why this rulemaking is being put in place," says the DOJ source. "The money isn't going to be flowing out there fast enough, people are going to be anxious and talking about it, and the people most anxious are those trying to get the money."