The Heller Gun Decision Week 20 and Beyond--Who Will Be Secretary of State and US Attorney General?

In terms of other developments, the NRA had a tizzy fit over the detailed questionnaire that the President-Elect sent out for those seeking a position in his administration. One of the questions asked related to gun ownership and the NRA implied that gun owners need not apply. Well, Tom Daschle is a gun owner and he will be the next HHS Secretary.

There is a reason that Obama is “No Drama Obama”. As I have indicated in several communications, vis-à-vis job questionnaires, I have actually filled out these questionnaires and they do ask a number of what some might view as intrusive questions. However, these people are Presidential appointees and as a result a President has a right to know what he or she is getting in a job applicant. The bloggers don’t like the questionnaire either – go to www.dailykos.com. The vetting process imposed by Obama is very tough which is why recruitment is very difficult.

In a number of areas of the United States, in order to legally own a firearm [particularly a handgun] it has to be registered or licensed. The United States Supreme Court in Heller affirmed this was valid ands the Eighth Circuit in United States v. Fincher, 538 F.3d 868, 874 (8th.Cir. 2008) specifically held that registration was allowed by Heller. Indeed, the NRA supported Michigan licensing reform that required that a person had to be licensed-registered to possess a firearm with an overall length of less than 30 inches. The 30 inch limitation covers a number of rifles and shotguns as I have noted in my articles.

The last thing that a President needs is an appointee who has legal issues or any surprises. The NRA had a field day in attacking Richard Mell as a hypocrite for failing to reregister his guns and then sponsoring a local ordinance to make himself “legal”. If Obama appointed someone to an office with Mell type issues the NRA would go full blast on that. It is not unreasonable to avoid that issue upfront by asking questions. There is a reason for the nickname “No Drama Obama”.

In the US Senate runoff race in Georgia, the NRA is going full blast for Saxby Chamblis which is really about a filibuster proof Senate. Jim Martin actually did a good jujitsu on Chambliss by pointing out Chambliss is the one who wants to raise taxes on guns and ammunition with his support of a national sales tax. It is very clear that the Republicans are still in denial mode over the elections.

Since I mentioned Michigan, I wanted to comment on Henry Waxman’s defeat of John Dingell for Commerce and Energy Committee chair and what that means. In the gun area, it probably frees Dingell up to engage more in the conservation and firearms area more than he has been. As I have stated before, John Dingell is a great legislator with a number of flaws. I alluded to that in terms of the DC Personal Protection Act. However Dingell’s greatest flaw was not “speaking truth to power” in terms of the automotive industry with the results being the current conundrum we face today.

As some may know, last October at the request of a number of persons I went to Michigan to help put together the licensing reform legislation that was enacted. While I did spend time on that, 45% of my time was spent in being asked questions in private meetings explaining California attitudes about vehicles. For all the stereotypes about this state, under the leadership of former Speaker Nunez and Senator Alan Lowenthal, the State has established three incentive programs intended to reduce air pollution and greenhouse gas emissions by assisting the auto industry move to next phase of clean cars so it is not as if we are not doing stuff. In fact, I referenced the Nunez-Lowenthal program in private meetings.

I would close on this subject with references to two State Senators who have spoken elegantly about “managing change”: Gil Cedillo and Debra Bowen who is now California Secretary of State. Globally – and this was on the issue of remote caller bingo where Senator Gil Cedillo probably saved the charities in this state – he remarked – in Benjamin Disraeli-Sir Robert Peel fashion – that change is constant and the question is how do you manage it.

What Gil referred to is the reality that what legislators and elected executive leaders do is to manage change hopefully in accordance with the principles of the Tamworth Manifesto which is the redress of real grievances and the correction of proven abuses. Peel's basic message that to survive constant and responsible reform was necessary. Speaking of the auto industry, Debra Bowen noted in a floor debate when she was in the Senate about the human carnage to her family and friends back in the Midwest because the auto industry did not embrace change and modernize which was and is a necessity to survival. The problem I had and have with John Dingell is that while he had an obligation to protect his state, he also had an obligation to force them to change. In sum, he had a choice of “just say no” or he could have acted like a Disraeli or a Peel or a Lord Curzon who saved the House of Lords from itself by passing the Parliament Reform Act of 1911.

In terms of DC, the Committee Waxman now chairs has DC oversight. Given that Waxman has to forfeit his chairmanship. The next member in line is Ed Towns of New York who likely will face a challenge for the gavel and is not exactly secure in his district. The third Democrat is Paul Kanjorski of Pennsylvania who is an A+ rated NRA Member of Congress.

On BATF matters, the Washington Post reported today – and to its credit the NRA favors this based on its website – that BATF has introduced an online firearms form to expedite background checks and prevent errors. As folks know, I have always been in favor of better and quicker background checks and moving on-line is the best way to do this. While the exact parameters of how this will work in the future is still an open issue, it is clear that moving to the California computerized-email system is the way to go so long as the issue of centralized FEDERAL registration is avoided.

There are many benefits of this in terms of inspections, expediting checks, and eliminating many technical violations before they happen. Instead of filling out the required ATF paperwork by hand, gun buyers and dealers will now be able to complete a much better and safer electronic version of the document, known as Form 4473. I will simply say that this development jives with what we tried to do in SB 327.

It was also leaked out from persons on Capitol Hill – not the Obama people - that President elect Obama was thinking of nominating Eric Holder as Attorney General. The President-Elect can fire his own leakers but he cannot fire the most notorious groups of leakers out there: Senators and Congresspersons. While everyone is focusing on Holder’s gun positions – and I am sure that this will come up in confirmation hearings if he is nominated, the fact is that Holder is really a “USDOJ lifer” and after the Alberto Gonzalez regime at DOJ the place is a mess which could use a lot of upgrading and professionalization. Holder was employed in the U.S. Justice Department functioning as a trial attorney in the Public Integrity Section during an interval lasting from 1976 to 1988. During his time there he prosecuted corrupt public officials.

In 1988, President Reagan appointed Holder to serve on the Judge of the Superior Court of the District of Columbia. Holder stepped down from the bench in 1993 to accept an appointment for U.S. Attorney for the District of Columbia from President Bill Clinton. He was U.S. Attorney until his elevation to Deputy Attorney General in 1997 replacing Jamie Gorelick – I went to High School with her brother who is now a professor of hydrology at Stanford. Holder was quickly confirmed several months later in the Senate by a unanimous vote. Holder briefly served as Acting Attorney General under President George W. Bush, until the Senate confirmed John Ashcroft.

Besides the gun issue [he signed a brief for clients in opposition to Heller following the Solicitor General’s general arguments] there are some issues as to what exact role Holder played in the Marc Rich pardon. Senator Arlen Spector of Pennsylvania and other Republicans on the Senate Judiciary Committee who were asked about Holder as being confirmable without a fight indicated that the Rich issue was a concern but no other issues were raised – which probably set the NRA off.

The Rich issue and how it is handled by Senate Republicans has major implications over any nomination of Hilary Clinton for Secretary of State. After all, whose husband pardoned Rich and what was her role in this? The difference between Holder and Clinton is Hilary sits in the Senate. For all the outside the Senate issues, Hilary is a popular member of the inner Senate Club. After some initial questions she worked herself into the inner workings of the Senate. She is as much a member of the Club as Teddy Kennedy or Orrin Hatch or Dick Lugar or George Voinovich. Indeed, there have been stories that Hilary did not want to run for President and loves the Senate so why she would leave is unclear.

The problem that Spector, John Kyl, Orrin Hatch, and other Republicans face is that many of the same people who might yell and scream about Holder are also big Fox News-Neo Con/Wing-nut supporters of Hilary because they agree with her foreign policy views so they want her as Secretary of State. Plus, a Hilary vacancy does create a potential target of opportunity for Republicans in terms of her US Senate seat being up in a special election [more below]. In any confirmation process, however there is no way that if Rich comes up Hilary will not be dragged into it.

What this suggests is that Holder and Hilary may have to be a pre-package deal – assuming that Holder explains that his gun position is the same as that of the President-Elect. Indeed, Orrin Hatch announced today that he was supporting Holder stating that "I respect the man and I intend to support him," Hatch told reporters Wednesday. Whether Hatch checked in with the NRA is unclear.

If the NRA and others have the courage of their convictions – and believe their press - then they should make clear in the confirmation process must be thorough and complete and that if they are not satisfied then anyone who votes for Holder to be confirmed [if nominated] should expect that his or her confirmation vote is a rated vote and that a vote for cloture is rated as well. The fact that this puts Mel Martinez and Arlen Spector are put in the masher basher an Oh Well! I am not sure that Holder may be nominated when push comes to shove or even confirmed. While Hatch and Spector have their views, Senate Minority leader Mitch McConnell has to worry about the Club for Growth types in his Caucus starting with Jim DeMint and Tom Coburn.

As to what a Hilary vacancy means- if she does exit the Senate - in terms of my home State of New York, as Governor Nelson Rockefeller once remarked in filling RFK’s vacated US Senate seat “there was no shortage of volunteers.” In this situation, Governor Paterson has two goals: (i) nominate someone of stature [the “No Drama Obama” rule] who can get elected in his or her own right; and (ii) whose appointment will help Paterson politically. The Governor has an Upstate problem and as of yet unresolved State Senate problem. While there is a lot of speculation, the Hilary seat has traditionally been the Upstate seat. Hilary is considered the Upstate Senator.

While a lot of names have been floated, the two most likely picks are either Congressman Brian Higgins of Erie County [Buffalo area] or Congresswoman Kirsten Gillibrand from Columbia County. Both are Upstate Irish Catholics who are pro choice-moderate-NRA endorsed. Gillebrand is also a net-roots favorite. Higgins is a favorite of Assembly Speaker Shelly Silver from Assembly days. I am not convinced that Higgins could raise the money to run statewide against someone like Rudy Guliani but Kirsten has shown she can. Kirsten vs. Rudy would result in a Rudy loss. Speaker Pelosi might have concerns here because the GOP is in a good position to pickup the Higgins seat [with the son of former Congressman – now state Assemblyman Jack Quinn] an d would pick up the Gillibrand seat in a special election.

That leads me to the New York State Senate situation. As I indicated before, you have a troika in the New York State senate [and I would argue a secret cheering section of about half a dozen other Senators] who will not vote for Malcolm Smith Jr. of Queens as Majority Leader-President Pro Tem. Upstate Democrats are getting pounded by gun rights activist who are union members about any and every alleged anti-gun/anti hunting action by Smith. I am on e-mail lists that get these communications. Smith is trying to give reassurances but it does not seem to be working.

Even if Senator Frank Padavan (R-Queens) loses in a count of 8,000 or so provisional ballots and the Republicans are engaging in their typical efforts to suppress minority voter ballots – in this case Asians and Hispanics – loses to Jim Gennaro, the Troika means that the Democrats cannot organize the Senate without their votes. It is clear that a Democrat will be elected leader though Senate Republicans lead by Dean Skelos are doing what they can to upset the apple cart.

There was some reference to 1965 and what Governor Rockefeller and Mayor Wagner did to teach Bobby Kennedy who was Daddy but that assume that you have the Governorship. Since I remember this somewhat – I was 10 at the time – a little history is in order and you had the same Upstate-Downstate dynamic.

In 1964, in the wake of the LBJ landslide and demographic shifts on Long island and Upstate and in Queens, in a mal-apportioned legislature [one person, one vote did not take effect until 1964], Democrats won control of the State Legislature. The GOP state legislative leadership was wiped out – losing the Speaker from Long Island and the Senate Leader from Buffalo.

And Robert Kennedy was elected to the US Senate. Kennedy [because of his brother] had supporters from Long Island and Upstate who wanted to move the party’s base outside of New York City. As a result, Kennedy in effect was forced into lining up support for an insurgent group to prevent the Democratic minority leaders of the Assembly and Senate, Assemblyman Tony Travia of Brooklyn [who Kennedy eventually had named a US District Court Judge by LBJ] and Senator Joe Zaretski from Manhattan from acceding to majority leadership. The Kennedy forces wanted Senator Julian Erway from Albany County and Assemblyman Stanley Steingut from Brooklyn [his father was Speaker during the 1935 session and Steingut himself became speaker in the mid 1970’s] as Speaker.’

The Kennedy forces ended up getting into a major duel with New York City Mayor Robert F. Wagner Jr whose father was a US Senator during the New Deal and he wanted to be there as well. Wagner was hardly a dynamic presence but his skills were often underestimated. The upshot was a standoff in January 1965 with the result that Wagner made arrangements with Governor Rockefeller [and President Johnson may have been involved as well to teach Bobby who was Daddy] to provide GOP votes to organize the Legislature with his candidates of Zaretski and Travia. The upshot was that in the Senate John Hughes (R-Syracuse) rose and placed in nomination Zaretski who was elected. Zaretski, who was backed by only 15 of 33 Democrats, was elected with the aid of 25 Republicans. The next day in the Assembly a similar coalition elected Travia Speaker of the Assembly.

Governor Rockefeller apparently got his issues resolved and Mayor Wagner chose not to stand for a fourth term in 1965 – he could not have been reelected. Democrats lost the Senate in 1965 elections that were conducted to comply with 1 person, 1 vote. Erway was defeated in 1968 and Steingut lost his primary in 1978. Four years later, the Democrats lost control of the Assembly because of losses on Long Island, in Queens and Brooklyn, and Upstate. The Democrats won it back in Watergate and have easily held it ever since. The whole brouhaha resulted in

When Steingut became Speaker in 1975 – he served 2 terms - he made sure that there was a very heavy Upstate-Long Island leadership presence to protect his back and that tradition has continued. New York City simply does not have the numbers to dominate the Assembly or the Senate. In the case of the Senate, the only reason the Republicans maintained control was that they had substantial representation from New York City and Long Island. The result of demographic changes was such that a number of Republican incumbents were holding heavily Democratic seats. Eventually, that caught up with the Senate Republicans which is why the lost the Senate in 2008.

Since the mid 1980's Irwin Nowick has worked for the California State Assembly and State Senate on a plethora of policy issues, most notably firearms legislation. He has been described as "The Assembly's resident genius" by a former Speaker of the Assembly and is seen frequently in the Capitol hallways and offices assisting legislators in drafting and amending pending legislation.