Both Schumer and ranking member John Cornyn (R-Texas) framed reform of high-skilled immigration policy as necessary for American economic competitiveness and, in particular, for keeping foreigners who are educated in U.S. universities in the national workforce after they graduate.

“We should staple a green card to their diplomas,” Schumer said in his opening remarks, instead of requiring them to leave once their student visas expire.

But the senior members sparred over whether reform of the employment visa system should be piecemeal, or part of a broader comprehensive package. Cornyn, addressing his Democratic colleague, said, “I think we can do just this,” arguing that the current stalemate in Congress over comprehensive reform didn’t mean that individual reforms couldn’t be achieved. But Schumer retorted that comprehensive reform is necessary because so many other stakeholders in the immigration debate want to be a part of successful legislation. Other Senate Democrats on the committee, including Sen. Al Franken (D-Minn.) and Sen. Richard Blumenthal (R-Conn.) agreed.

Dr. Puneet S. Arora, an Indian-born clinical researcher who first entered the U.S. 15 years ago and is still waiting for a green card, told the committee that the policy that prevents him and thousands of otherwise successful Indian immigrants in the United States from acquiring a permanent visa is the requirement that the fixed quantity of employment-based visas not exceed a certain percentage for each country of origin. Thus, the disproportionately large number of Indian immigrants to the U.S. means that Arora must wait many years on a long waiting list before getting his green card.

Chuck Grassley

One point of controversy, picked up on by Sen. Chuck Grassley (R-Iowa), was whether there really are labor shortages in the STEM (Science, Technology, Engineering, Math) reliant industries. Dr. Ronil Hira, an immigration policy expert from the University of Rochester, said that other experts on the panel (those representing the employer side of the immigration debate) were misrepresenting the extent to which high-skilled jobs are really going unfilled because of a lack of qualified workers. He pointed out that high-skilled native-born American workers are suffering from high unemployment rates (although not as high as low-skilled workers are). But other panelists, including the chief executive of NASDAQ OMX and the president of Cornell University, responded that looking at raw unemployment numbers fails to capture the ways in which jobs requiring very particular skills aren’t being filled for lack of candidates.

“For years, our country has struggled to find a way forward on immigration reform. Since the debate reached its peak in 2007, our economy has experienced turmoil comparable to the Great Depression. Americans are out of work, families are being foreclosed on, and businesses are suffering. I agree we must do all we can to improve our economic situation. However, I have concerns with the notion that increasing immigration levels and enacting legalization programs is the answer to the current economic downturn,” Grassley said.

Hira argued that temporary visas are abused by companies located in the United States that use them to hire foreign engineers at below-market prices. Schumer agreed that he believes this is a problem, which was why he sponsored last year’s border enforcement bill, which raised the fees that high-tech companies must pay if they wish to sponsor foreign workers.

Perhaps the most contentious moment in the hearing was when Sen. Jeff Sessions (R-Ala.), after lecturing the business leaders present for supporting the torpedoed 2007 Senate comprehensive reform bill, began to debate Microsoft’s top lawyer Brad Smith over whether a Canadian style points system would be better than the United States’ employer-driven immigration system: “I would take Canada’s system in a heartbeat,” Sessions said, because it was a “national policy” rather than a policy allowing businesses to pick and choose who should get a visa.

Canada’s immigration system assigns points to visa applicants based on their economic desirability, including such factors as the education level, languages spoken and other specific skills possessed by the immigrant. Business leaders and immigration experts have criticized points systems because they fail to directly take employers’ needs into account.

During the second part of the hearing, the committee heard from three mayors from across America, one of whom was the Republican mayor of Uvalda, Ga., who is a party to the lawsuit against that state’s new immigration law. Mayor Paul Bridges argued that the immigration law will devastate Georgia’s economy and actually decrease public safety because local police will be diverted to enforce the law.

Mayor David Roefaro of Utica, N.Y., highlighted the contribution that Bosnian refugees had made to his city’s economy. These Bosnian immigrants were admitted under the humanitarian, not employment or family, visa quota provided under existing U.S. immigration law, but Roefaro stated that they had nevertheless empowered Utica to create more jobs than they would have otherwise.

Schumer concluded the hearing with the concurring observation that many different types of immigrants can contribute to economic growth.

The vote broke largely on partisan lines — all 12 Democrats on the committee voted for Kagan while six of the seven Republicans voted against her. Only Sen. Lindsey Graham (R-S.C.) broke GOP ranks to vote in her favor.

As Sen. Arlen Specter (D-Pa.) spoke about his decision to vote for Kagan, he bemoaned the committee’s partisan divide on the vote, noting that it reflects the battle over the Court’s ideological bent. He added that despite Republican colleagues’ concerns about Kagan’s association with former Justice Thurgood Marshall, he hoped she would follow his example.

Sen. Chuck Schumer (D-N.Y.) said prior to the vote that he felt partisan divisions would prevent Kagan from garnering more than a few Republican votes in the full Senate.

“Sadly, it appears election-year politics may deprive her of the vote total that her nomination deserves,” he said.

The committee’s endorsement of Kagan was never in doubt — just the margin. Attention today focused on Graham, the only swing vote whose stance on Kagan was unknown going into today’s session. He was always the Republican most likely to break ranks in Kagan’s favor — he was the only member of his party to support Justice Sonia Sotomayor during her confirmation last year.

Graham noted as he announced his decision earlier today that while he would not have nominated a justice who shared Kagan’s political ideology, Obama had a mandate from the voters to choose a nominee.

“I’m going to vote for her because I believe this last election had consequences,” he said.

Other committee Republicans were not so charitable, using their time today to criticize Kagan’s lack of judicial experience and her stances on some hot-button issues.

Sen. Jeff Sessions (R-Ala.), the committee’s ranking member, criticized Kagan in part because she had restricted military recruiters while dean of Harvard Law School. He and other Republicans brought up that issue repeatedly during Kagan’s confirmation hearings.

“Throughout her career, Ms. Kagan has placed her politics above the law,” Sessions wrote in a USA Today op-ed published today.

C-SPAN reported that the full Senate will likely take up Kagan’s confirmation starting Aug. 2.

Updated at 1:12 p.m.

“I don’t believe that any nominee should be confirmed to the Supreme Court unless he or she has made clear that they will protect the fundamental rights written in our Constitution, and will not abuse judicial power to impose their own policy standards on the American people,” he told reporters from the Dallas Morning News and other publications.

He is the second Republican on the committee to publicly announce his vote against Kagan — Orrin Hatch of Utah announced his opposition in a statement on July 2. Cornyn’s announcement is hardly a surprise, as he had attacked Kagan on her judicial philosophy and her association with former Justice Thurgood Marshall, whom he called “a judicial activist.”

But even as Cornyn voiced his concerns about Kagan, he acknowledged the Judiciary Committee and a majority of members in the full Senate would vote for her. There are 12 Democrats and seven Republicans on the committee. Kagan needs 60 votes to prevent a filibuster and a bare majority to be confirmed by the full Senate.

“My guess is that she will receive the minimum number of votes in order to be confirmed,” he said.

Ranking member Jeff Sessions (R-Ala.) had asked for the delay on behalf of committee Republicans, who claimed they needed the extra week to read through Kagan’s written responses to their questions. The move was widely expected, as the senators had only received Kagan’s responses on Friday. Sessions made a similar delay request for Cole.

Leahy said he would defend Sessions’ right to request the delays, but noted that he did not want Republicans to repeatedly stall Kagan’s confirmation vote.

“I suspect that every single member of this committee knows how he or she will vote,” he said. “I hope that we will not needless delay her as we did not needlessly delay either Chief Justice Roberts or Justice Alito.”

Sessions claimed Republicans were not trying to needlessly stall a vote on Kagan.

“I think we’re moving this nomination in a very expeditious manner,” he said. “I think we’re cooperating in a fair way to move this nomination forward.”

Updated at 12:01 p.m.

As confirmation hearings opened Monday afternoon, Republicans on the Senate Judiciary Committee took the unusual approach of attacking Kagan because she admired the late justice Thurgood Marshall, for whom she clerked more than two decades ago.

“Justice Marshall’s judicial philosophy,” said Sen. Jon Kyl (Ariz.), the No. 2 Republican in the Senate, “is not what I would consider to be mainstream.” Kyl — the lone member of the panel in shirtsleeves for the big event — was ready for a scrap. Marshall “might be the epitome of a results-oriented judge,” he said. [...]

Sen. Jeff Sessions (Ala.), the ranking Republican on the panel, branded Marshall a “well-known activist.” Sen. Chuck Grassley (R-Iowa) said Marshall’s legal view “does not comport with the proper role of a judge or judicial method.” Sen. John Cornyn (R-Tex.) pronounced Marshall “a judicial activist” with a “judicial philosophy that concerns me.”

This isn’t the first time Republicans have attacked Kagan for her praise and admiration for the late justice; shortly after her nomination, RNC chairman Michael Steele blasted Kagan for her ties to Marshall:

RNC Chairman Michael Steele targeted her praise for the jurisprudence of Marshall, a liberal icon, and a speech in which Marshall called the Constitution “defective.” [...]

“Given Kagan’s opposition to allowing military recruiters access to her law school’s campus, her endorsement of the liberal agenda and her support for statements suggesting that the Constitution ‘as originally drafted and conceived,’ was ‘defective,’ you can expect Senate Republicans to respectfully raise serious and tough questions to ensure the American people can thoroughly and thoughtfully examine Kagan’s qualifications and legal philosophy before she is confirmed to a lifetime appointment,” Steele said in the statement.

As for yesterday’s hearing, TPM’s Christina Bellantoni kept a tally, and found that Republicans mentioned Marshall a whopping 35 times. At the Washington Monthly, Steve Benen sees this as evidence of a coordinated attack on Justice Marshall’s views, and marvels at the spectacle of GOP senators ”condemning one of the most venerated Supreme Court justices in American history.”

For my part, I’m not too surprised to see Republicans target Thurgood Marshall for attack; not only was he one of the most liberal justices in Supreme Court history, but his tenure on the Supreme Court was relatively recent. Indeed, some longer-serving GOP senators are old enough to have railed against Marshall for “activist judging” in the 1980s or early 1990s, before he died. And while liberals might find conservative attacks on Marshall offensive, it’s worth noting that they’ve focused their fire on his theory of jurisprudence and not his work for the NAACP. The former is untoward; the latter, genuinely objectionable.

Earlier this afternoon, Breitbart.tv released a short clip of a 1997 Case Western Reserve University speech in which Kagan said she thought Bork’s 1987 hearings “were the best thing that ever happened to Constitutional Democracy.” Here’s what she said:

I loved what happened in the Bork hearings. I wrote a review of Stephen Carter’s book recently where I said, “no, he has it all wrong. The Bork hearings were great, the Bork hearings were educational. The Bork hearings were the best thing that ever happened to Constitutional Democracy.” So, I share that view with Professor Toulouse.

Though Kagan herself was tight-lipped in her confirmation hearing for Solicitor General last year, ABC News’ Ariane de Vogue reports that Kagan had given even more effusive praise for the way the Bork hearings were conducted in a law review article published two years before the speech.

In the article, Kagan wrote that Bork’s hearing should be a “model” for all others, because even though it ended in the candidate’s rejection, the hearings presented an opportunity for the Senate and the nominee to engage on controversial issues and educate the public.

“Not since Bork,” she said, “has any nominee candidly discussed, or felt a need to discuss, his or her views and philosophy.”

This morning, before the video of Kagan’s speech went online, we learned that Bork himself is opposed to Kagan’s confirmation and will come out against her during an Americans United for Life news conference Wednesday.

While Kagan may not choose to give expansive replies to senators’ questions, there is a massive paper trail for political junkies to read through. The Senate Judiciary Committee has uploaded all of the materials she submitted to them. All of the files Bill Clinton’s presidential library released in the last few weeks on Kagan’s White House work are also available online via the National Archives.

Attorney General Eric Holder testifies before the Senate Judiciary Committee on Wednesday. (James Berglie/ZUMApress.com)

Eric Holder stepped into the Dirksen building this morning an embattled man facing Republican members of the Senate Judiciary Committee fiercely critical of his desire to try Khalid Shaikh Mohammed and the other 9/11 conspirators in federal court. He left three hours later having defused some of his critics; conceding little; sticking up for his department’s role in counterterrorism; and placing back onto the table the prospect of a New York trial for the man known as KSM.

[Security1]For months, Holder and his Justice Department have been at the center of conservative ire at the Obama administration’s national security policies. Sen. Mitch McConnell (R-Ky.) called Holder out in a caustic February speech for playing an unduly influential role in counterterrorism, evidenced by Holder’s contentions that KSM and would-be Christmas bomber Umar Farouk Abdulmutallab should be tried in civilian courts. Sen. Jeff Sessions (R-Ala.) and Sen. Chuck Grassley (R-Iowa.), both Judiciary Committee members, have portrayed administration lawyers who defended Guantanamo detainees as possessing shadowy, un-American loyalties, and an ad building on their statements dubbed the lawyers “the al-Qaeda Seven.” Sen. Lindsey Graham (R-SC) has spent months working on a deal with the White House to trade GOP support for closing the Guantanamo Bay detention facility in exchange for overriding Holder and trying KSM before a military commission.

But Holder did not appear under fire during his first Senate testimony since the KSM controversy swelled. More often, it was his critics who backed down, conceded rhetorical territory or disagreed among themselves. “There’s been a lot of misinformation placed out there,” a confrontational Holder testified. “Without casting aspersions on anyone in this room, there’s been a lot of unnecessary politicization of national security issues that I don’t believe has benefited this country.”

Holder reminded the committee that civilian courts have convicted “close to 400″ individuals on terrorism charges, compared to three in military commissions — though Holder, adapting a phrase of Graham’s, said he would be “flexible, pragmatic and aggressive” in keeping both the commissions and the civilian courts as options for terrorism trials. That caused Sessions, who sought to portray Holder as an enemy of the commissions, to assert: “It’s pretty clear to me you made a firm decision to go the other way, with civilian courts with all these other cases.” Holder replied that he had referred more terrorism cases — six, to be specific — to the military commissions than he had to the civilian courts. Similarly, when Sessions attempted to get Holder to say he’d favor reading Miranda rights to Osama bin Laden, Holder answered that there would be no need, since the government has more than enough information at present to convict bin Laden of terrorism crimes.

“I acknowledge that’s possible,” Sessions said.

That set the tone for Republican parrying with Holder. Grassley said he never intended “to call into question the integrity of any employee of the department” when requesting the names of department lawyers who represented Guantanamo detainees. Holder called the “al-Qaeda Seven” ad “reprehensible, and said that he would not participate in an effort to “tarnish the patriotism” of attorneys who “did what John Adams did” by defending hated clients. Grassley did not press the issue.

Graham found himself more in agreement with Holder than with Sessions. He portrayed himself as a Republican who doesn’t “reject all [civilian] courts” for terrorism cases, an implicit knock at his GOP colleagues. After Holder conceded that 48 detainees from Guantanamo Bay were “not feasible to transfer [and] too dangerous to prosecute,” the two men found themselves in substantial agreement over designing a system of indefinite detention with annual administrative review in addition to permitting detainees to receive habeas corpus hearings before federal judges. Notably, while Sessions contended that military commissions could better protect classified information than civilian trials, Graham — as of February, a leading proponent of that view — did not. It was easy to forget that Graham and Holder have spent months on either side of the issue of whether Khalid Sheikh Mohammed deserves a civilian trial.

On that issue — one in which both civil libertarians and conservatives have awaited Holder’s testimony to see if he would accept a military commission — Holder did not give any ground. “No final decision has been made about the forum in which Khalid Sheikh Mohammed and his co-defendants will be tried,” Holder said, predicting a decision would not be made for “a number of weeks.” Pointedly, he added that “New York is not off the table” as a possible location for a trial, even though many New York politicians have objected to the trial and called for it to be moved — objections that in January raised the prospect of scuttling civilian trials for the 9/11 conspirators altogether. When Sen. Chuck Schumer (D-NY) urged Holder not to hold the trial in New York, Holder said the Obama administration would “take into consideration, obviously, the expressions of the political leadership” in the state but indicated those objections aren’t decisive, adding that it would also consider “what we are able to glean from the population” about support for the trial.

Holder’s steadfastness on the trial won him plaudits from civil libertarians. “I was glad to see Holder standing strong against the Republicans trying to beat the administration over the head with closing Guantánamo and using civilian trials,” Vince Warren, the executive director of the Center for Constitutional Rights, said in a statement. “If the U.S. is ever going to regain credibility in the world, the administration can’t let itself be bullied by fear mongers with their eyes on midterm elections rather than the law.”

But Holder’s embrace of military commissions and indefinite detention without charge cast a pallor on their enthusiasm. “I’m not sure about Holder. Some of the folks I know and respect at DOJ think very highly of him,” said ret. Air Force Col. Morris Davis, the former chief prosecutor of the military commissions at Guantanamo Bay, in an email. “On the other hand, what I’ve seen on the national security front — basically adopting the same Bush-Cheney policies candidate Obama was firmly against — has been disappointing. I used to get perturbed when the ‘flip-flop’ accusation got thrown around, but it’s hard to argue that the label doesn’t fit the administration’s waffling view that military commissions are bad, no they’re good, no they’re bad again, oh wait maybe they’re good after all approach.”

Democrats on the committee rallied to Holder’s defense. “I’ve come to the conclusion that some of the attacks are to diminish you, and you should remain strong,” said Sen. Dianne Feinstein (D-Calif.).

Sen. Sheldon Whitehouse (D-RI), a former Rhode Island attorney general and federal prosecutor, tacitly compared Holder’s critics to a mob, a resonant image after The New Yorker recently reported that a January New York rally of conservatives against the KSM trial featured someone yelling, “Lynch Holder!”

“The emblems of American justice,” Whitehouse said, are “the blindfold and the balance, and not the torch and the pitchfork.”

Holder acknowledged earlier in the hearing that the administration was still working on what would be a reviewable determination that a detainee whom the administration would neither charge with terrorism offenses nor release posed a threat to the United States, in addition to receiving a habeas petition from a federal judge. Graham said he “applauded” that effort, since the determination could be a “de facto life sentence,” and urged the administration to look to Congress for helping craft such a procedure. Totally coincidentally, I’m sure, Graham is working on his own such indefinite detention proposal.

If I understand Graham and Holder correctly, what they’re describing sounds an awful lot like what used to prevail at Guantanamo Bay: a one-time determination that a detainee posed a sufficient threat to the U.S. to justify placement in Guantanamo, known as a Combatant Status Review Tribunal, with an annual determination of whether the threat from the detainee remains in place, known as an Administrative Review Board. In this case, though, there would be the additional, independent step of a federal judge’s habeas corpus review.

Sessions: “I acknowledge that’s possible.” Understatement of the day.

Holder and Sessions went back and forth, with Sessions raising his voice at times. “It’s pretty clear to me you made a firm decision to go the other way, with civilian courts with all these other cases,” Sessions said, unable to box Holder in. Holder defended civilian trials for terrorists, but insisted that he will retain the right to be “flexible, pragmatic and aggressive” in deciding whether to bring charges against a terrorist in civilian courts or military commissions. The attorney general did not raise his voice.

But we don’t do he-said-she-saids here at The Washington Independent. So I’ve got what Sessions is talking about, and so I’m going to post it here so you can see this for yourself and see who’s telling the truth. It’s a disclosure from March 22, and it’s public, but it’s also in a bit of an obscure place on the Judiciary Committee’s webpage (PDF). By contrast, and so you can reach an informed decision, the CIPA statute is here. After the jump, the seven distinctions Holder and Sessions fought about on classified-info procedures between civilian courts and military commissions. You make the call.

The classified information provisions of the Military Commissions Act of 2009 were based on CIPA, but with revisions to take into account lessons learned in terrorism cases in federal court. The following is a list of some of the key differences between the MCA of 2009 and CIPA:

• Ex Parte Pretrial Conference. The MCA includes an explicit provision allowing a military commissions judge to conduct an ex parte pretrial conference with either party to address potential classified information issues that may arise in connection with the case. Although federal judges applying CIPA routinely conduct such conferences, they are not expressly addressed in the statute.

• Protective Orders. The MCA requires a military commissions judge to issue an order to protect against the disclosure of classified information produced in discovery or otherwise provided to, or obtained by, any accused. This provides protection for classified material that the defense may have obtained outside the formal discovery process. While CIPA only requires the issuance of a protective order with respect to classified documents provided in discovery, some federal court judges have similarly issued protective orders covering the use at trial of classified information acquired by the defense outside the discovery process.

• Discovery. The MCA authorizes the military judge to order alternatives to full disclosure of any form of classified information. Although federal judges have crafted numerous ways to protect all types of classified information, CIPA only explicitly authorizes the judge to order alternatives to disclosure of classified documents. The bill also provides a clear standard (“non-cumulative, relevant, and helpful to a legally cognizable defense, rebuttal of the prosecution’s case, or to sentencing”) for determining whether defense access to classified information should be granted. This standard is drawn from case law addressing classified evidence issues but is not found in the text of CIPA itself.

• Declarations. Under the MCA, the prosecution must provide a declaration invoking a privilege to protect classified information and setting forth the damage to the national security that the disclosure or access to the classified information reasonably could be expected to cause when seeking an alternative to full disclosure. By comparison, CIPA does not specify what must be provided in support of the government’s request for relief from disclosure of classified information. This is consistent with CIPA practice — in which the government regularly provides a declaration setting forth the possible damage to national security if disclosure is ordered — but is not explicitly required by the CIPA statute.

• Use of Classified Information at Trial. The MCA bill provides explicit authority for the prosecution to protect the classified information it seeks to introduce at trial through the use of alternatives to full disclosure and protective orders. Although federal courts have routinely allowed the use of alternatives at trial, the CIPA statute does not provide the explicit authority to do so. The MCA also provides a standard for the judge in determining whether to order the disclosure of classified information for use at trial (“relevant and necessary to an element of the offense or a legally cognizable defense and . . . otherwise admissible in evidence”). This standard is drawn from case law addressing classified evidence issues but is not found in the text of CIPA itself.

Interlocutory Appeal Right by U.S. The MCA provides the U.S. with authority to seek interlocutory appeal of any order or decision that forces the disclosure of classified information, regardless of whether the order appealed from was entered under a specific provision governing classified information, or any other rule or provision of law. By comparison, CIPA only provides for interlocutory appeal from certain decisions or orders issued pursuant to CIPA.

• Closure of the Courtroom. The MCA explicitly allows the judge to order closure of the courtroom to protect evidence “whose disclosure could reasonably be expected to cause damage to the national security, including intelligence or law enforcement sources, methods, or activities.” (§ 949d(a)(2)(c) of S. 1390.) Although CIPA does not contain a provision explicitly allowing such closures, the courtroom may be closed to protect classified information in federal court provided the relevant constitutional standard is met.