With only three of 22 judicial nominees confirmed so far, it “seems clear that Senate Republicans are prepared to take the partisan war over the courts into uncharted territory—delaying up-or-down votes on the Senate floor for even the most qualified and uncontroversial of the president’s judicial nominees.”

The problem of judicial nominations parallels the obstruction of executive nominations, a problem I highlight in my piece today about the seven-month delay in confirming President Obama’s pick to head the Office of Legal Counsel, Dawn Johnsen.

In Kendall’s view, the “unprecedented and dangerous” obstruction, if it continues, “will worsen an already serious problem of vacancies on the federal courts” as well as “discourage from ever entering the confirmation process precisely the type of nominees both parties should want.”

Reps. Brian Baird (D-Wash.) and Louise Slaughter (D-N.Y.) sponsored a bill to prevent members of Congress from trading on information gleaned from working on the Hill. (house.gov)

In November of 2005, then-Senate Majority Leader Bill Frist (R-Tenn.) took to the upper-chamber floor with a major announcement. The Senate, he revealed, would soon put its full weight behind legislation creating a multi-billion dollar fund to settle lawsuits from victims of asbestos exposure — lawsuits that had already bankrupted several building supply companies.

“I am pleased to inform my colleagues that asbestos reform will be the first major legislation that we consider in late January when we return,” Frist said at the time.

Illustration by: Matt Mahurin

For most of the country, Frist’s speech was the first notice of that strategy. But for some Wall Street investors, his plan was old news that translated into big money. Indeed, shares of the world’s largest sheet-rock company, Chicago-based USG Corp., jumped more than $2 — and trading volume nearly tripled — the day before Frist delivered his announcement.

Somehow, someway, the message that Congress was moving to help companies like USG had dribbled onto Wall Street before the rest of the world knew a thing about it. And trading on such leaks, it turns out, is perfectly legal.

Now, a small group of Democrats, backed by a host of public-interest groups, wants to prevent the use of similar non-public information to guide investment decisions. Under the bill, sponsored by Reps. Brian Baird (D-Wash.) and Louise Slaughter (D-N.Y.), lawmakers and their staffs would be prohibited from trading in stocks, bonds and commodities markets based on insider knowledge gleaned from their everyday duties on Capitol Hill. The proposal would also prohibit the transfer of such information to other parties — a spouse; a brother-in-law; a political intelligence firm — who then use the information for trading purposes.

In a telephone interview last month, Baird said there’s no clean evidence that such insider trading is endemic in Washington. “But in a town that trades on information,” he added, the likelihood that it’s happening is “almost a certainty.”

“There’s no question that we get access to information,” Baird said. “There need to be bright-light firewalls between public and non-public [information].”

With most lawmakers dabbling to some extent in stocks and other publicly traded commodities, watchdog groups warn that the opportunities for members to use or convey non-public information — even if it’s done 100 percent unconsciously — are frequent. This has particularly been the case during the long string of government-funded bailouts of the finance industry that’s marked the last 18 months.

Last September, for example, as Wall Street was crumbling but before the extent of the troubles were clear, the heads of the Federal Reserve and the Treasury Department called congressional leaders to an emergency, closed-door meeting to announce their plan for an unprecedented, multi-billion dollar rescue of the nation’s financial sector.

One day later, at least 10 senators traded stock or mutual funds related to the finance industry, according to personal financial disclosure forms submitted by lawmakers last month.

At least one of those lawmakers, Sen. Richard Durbin (D-Ill.), had attended the meeting the evening before, an episode first reported by Bloomberg last month. A Durbin spokesman told Bloomberg that the senator didn’t use any information from that closed-door gathering to counsel his trades the following day.

While there’s no evidence to refute that claim, public-interest advocates argue that the mere appearance of lawmakers’ abusing their powers can lead to a dangerous erosion of public trust in all government officials.

“If it appears to be the case, then everyone’s under suspicion,” said Laura MacCleery, deputy director of campaign finance at New York University’s Brennan Center for Justice. “You want politicians to be beyond reproach. You want a system that protects the innocent and makes it impossible for the guilty to operate.”

While current law prevents insider trading on non-public information gotten through corporate channels, the Securities and Exchange Commission does not have similar powers to regulate trades made on non-public information obtained through government channels.

That loophole could allow lawmakers and other federal employees to make millions of dollars on insider investments, Baird said. If they’re later accused of getting insider information, he added, they’ve got a simple defense: “Not from the company, I didn’t.”

In March, a coalition of public interest groups, including the League of Women Voters, Common Cause and Public Citizen, endorsed the House bill in a letter to Baird and Slaughter that explained the loophole further. “Under current law, ‘insider trading’ is defined as the buying or selling of securities or commodities based on non-public information in violation of confidentiality — either to the issuing company or the source of information,” the groups wrote. “Most federal officials and employees do not owe a duty of confidentiality to the federal government and thus are not liable for insider trading.”

There is some evidence that, consciously or not, federal lawmakers tend to use their informational advantage to reap better Wall Street returns than other investors find. A 2004 study conducted by researchers at Georgia State University, for example, found that trades made by selected senators between 1993 and 1998 produced returns more than 12 percent higher than the rest of the market.

“These results,” the researchers concluded, “suggest that Senators knew appropriate times to both buy and sell their common stocks.”

Such findings might make a strong case for adoption of safeguards like the Baird-Slaughter bill. But it’s not easy to get Congress to police itself. Indeed, despite having both control of the White House and comfortable majorities in Congress, Democrats this year seem poised to ignore proposals reforming campaign finance laws and eliminating automatic congressional pay raises.

Melanie Sloan, executive director of the Center for Responsibility and Ethics in Washington, said the Baird-Slaughter bill fits into the same category. “There’s rarely support,” she said, “for things that limit lawmakers’ behavior.”

Robert M. Stern, president of the Center for Governmental Studies, a Los Angeles-based non-profit research group, agreed, maintaining that the Baird-Slaughter proposal has little chance of getting anywhere anytime soon.

“I don’t think I would hold my breath for that one,” Stern said, adding, “It’s so typical of legislators holding everyone up to standards except themselves.”

A Coleman spokesman insists that the move is purely financial and reflects no sense of pessimism about the race.

“The senator needs to earn a living while the contest is going on,” said Mark Drake, adding, “I think our supporters recognize that Sen. Coleman is not a millionaire.”

Meanwhile, Coleman’s opponent, DFLer Al Franken, is getting ready for work at the Capitol. According to our sister site, The Minnesota Independent, Franken discussed Senate business and potential committee appointments with Majority Leader Harry Reid (D-Nev.), and Reid has indicated that he would like to seat Franken as soon as possible.

But in all likelihood, they’ll have to wait for a ruling from a specially appointed three-judge panel, which will begin hearing Coleman’s election contest on Monday.

The Minnesota canvassing board doesn’t certify a winner; it simply certifies a count. Here we are in the contest phase. In legal terminology, it’s a de novo trial – totally new. It’s not an appeal of the canvassing board’s decision. …

Coleman will try to establish that the ballots have not been counted uniformly, and the different methods led to an inaccurate count. There is evidence for this. …

Coleman might also narrow the margins if the contest board absorbs his arguments about double counting.

I don’t buy it. Sure, anything’s possible at this point, but you have to remember that the courts don’t operate in a vacuum. As much as they should be following the letter of the law, they’re also well aware that the people of Minnesota are thoroughly fed up with this election and want their full dual representation in the U.S. Senate.

According to a recent poll, 49 percent of Minnesotans disagree with Coleman’s plan to challenge the election results, and 44 percent say he should concede even before the justices rule on the case. Among independents in another poll, a majority oppose Coleman’s decision and want Franken to be seated provisionally.

And who are the justices making this decision? They’re a three-judge tribunal appointed by NFL Hall of Famer Alan Page, who is believed to be a Democrat. While his selected judges technically cover the political spectrum — they were appointed by a DFLer (Rudy Perpich), an independent (Jesse Ventura) and a Republican (Arne Carlson), respectively — Carlson has already stated publicly that Coleman should concede. If these judges lean in any direction, it’s likely to be Franken’s.

Then we come to the crux of the matter: the nature of Coleman’s challenges. Quite simply, there’s no consistency to them. Coleman’s cherry-picking lawyers are asking to add some ballots and remove others, without any overarching logic (or much success). The judges will recognize that Franken can play that game too, and unless they want to open up a whole new set of challenges, it seems to me that they’re likely to uphold the canvassing board’s result — and the state Supreme Court’s prior rulings — and send Franken to Washington.

UPDATE: Nate Silver also has some thoughts on this. Worth a read.

Yesterday, Franken sought Gov. Tim Pawlenty (R) and Secretary of State Mark Ritchie’s (D) signature of the election certificate, but they declined, citing a statute requiring any court contest of the election result to be resolved before the certificate can be signed. Franken’s opponent, former GOP Sen. Norm Coleman, is contesting the election in a lawsuit.

But now Franken’s lawyers are arguing that one subdivision of the statute overrides another, and as a result the state is compelled to certify Franken’s victory, even if Coleman’s suit is not yet resolved.

Here’s an excerpt of the subdivision cited by Franken’s lawyers:

In an election for United States senator, the governor shall prepare an original certificate of election, countersigned by the secretary of state, and deliver it to the secretary of the United States Senate. … If a recount is undertaken by a canvassing board pursuant to section 204C.35, no certificate of election shall be prepared or delivered until after the recount is completed. In case of a contest, the court may invalidate and revoke the certificate as provided in chapter 209.

And here’s the subdivision cited by Pawlenty:

No certificate of election shall be issued until seven days after the canvassing board has declared the result of the election. In case of a contest, an election certificate shall not be issued until a court of proper jurisdiction has finally determined the contest. This subdivision shall not apply to candidates elected to the office of state senator or representative.

The two appear to contradict each other, and now it’s up to the state Supreme Court to resolve.

(Via The Minnesota Independent.)

At the end of the statewide recount, Franken led by 225 votes, and today he sent letters to Gov. Tim Pawlenty (R) and Secretary of State Mark Ritchie (D), arguing that Minnesota should have full representation in the Senate as the upper chamber begins to debate its agenda. The state leaders have yet to respond.

According to state law, the election certificate cannot be signed within seven days of the certification of the result. That seven-day window has now elapsed, but it is unclear whether Franken can be seated in Washington while Coleman’s lawsuit is pending.

In the meantime, Coleman’s case has taken a serious hit. He is seeking to have 654 rejected absentee ballots counted, even though they have twice been ruled faulty — on Election Day, and upon a second review by election officials last month. Now it looks as if they will be rejected for the third time.

Several counties have once again reviewed these ballots, and the numbers aren’t good for Coleman. Nate Silver reports that of the 151 of these ballots that the counties have reevaluated, just one has been deemed improperly rejected. For Coleman, that’s a success rate of two-thirds of one percent.

Of course, Coleman’s aim is to have the courts rule in his favor, and local officials will probably not play much of a role. But at a time when Coleman needs literally everything to go his way if he is to have a chance of overturning Franken’s victory, this isn’t a good start.

UPDATE 2:08 PM: The Minnesota Independent reports that Pawlenty has rejected Franken’s request for a signed election certificate, citing a statute indicating that election contests must be resolved before a certificate can be issued.

Basically, Republican Norm Coleman is contesting DFLer Al Franken’s election victory on three fronts. First, he says that 133 lost ballots that benefited Franken by 46 net votes should not be counted. Second, he alleges that between 130 and 150 ballots were counted twice, though he can’t be sure which candidate they helped. And third, he argues that 654 additional absentee ballots should be counted, even though they were twice rejected by election officials.

The election contest will be adjudicated by a three-judge panel to be named by NFL Hall of Famer and current Minnesota Supreme Court Justice Alan Page, who is believed to be a Democrat. Republicans will no doubt whine about a liberal bias in the courts — as they already have in this contest — but Page is the ranking member of the state’s high court, after Chief Justice Eric Magnuson recused himself.

Basically, this is all a “Hail Mary” on the part of the Coleman campaign, which would have to have everything go its way to stand a chance of erasing Franken’s 225-vote lead.

When will it finally end? From The Minnesota Independent:

Nobody knows. Most political observers have speculated about a roughly two-month timeframe. But legal expert Ron Rosenbaum, speaking on KFAN (1130-AM) yesterday, poured cold water on that relatively quick scenario. “I think those people are dreaming,” he told host Dan Barreiro. “This thing could easily last longer than you even want to imagine, if permitted, and I think there’s a reasonable chance that could happen.”

The problem is, back on Nov. 5, when Coleman held a tentative 215-vote lead, he said that if he were Franken, he would “step back” because “the healing process is so important, the possibility of making a change of this magnitude in the voting system we have is so remote.” Take a look:

Now, with Franken up by a nearly identical margin — 225 votes — and Coleman’s chances infinitely more remote than Franken’s were in November, Coleman seems to have reversed his stance.

We’ll know for sure in a little more than an hour. At 4 p.m. ET, he is scheduled to hold a press conference. As much as Democrats — and some Republicans — are hoping for a surprise concession of defeat, it’s widely expected that he’ll announce his plans to sue. You can watch it live at The Uptake.

We’ll have an update after the press conference.

UPDATE 4:10 p.m. ET: As expected, Coleman’s not giving in. “As of today not every valid vote has been counted and some have been counted twice,” he asserted at the press conference. Again contradicting his Nov. 5 self, he said, “I think it’s really important for a six-year term that we get this right,” adding later, “Let’s take the time … to get it right.”

Here’s his press release in full:

“Minnesota law reads that an election contest – not Harry Reid – should decide the winner of a contested election. The efforts of Al Franken, Harry Reid and Chuck Schumer to steal this election and seat Al Franken despite not having an election certificate are unprecedented.

“When elections are being decided by double-counted votes and double standards in the treatment of absentee ballots, there must be a remedy to get an accurate and valid vote total – that remedy is an election contest. That is the law of Minnesota enacted by the people of Minnesota. The people of Minnesota deserve to see their laws followed.

“I am confident that if the law is followed, Norm Coleman will be taking his rightful seat in the U.S. Senate.”

Unfortunately for the RNC, no one outside of the GOP appears to agree.

Senate Majority Leader Harry Reid (D-Nev.) told CQ that there “likely will be an attempt to seat [Franken] this week.”

Yet when I talked to Franken spokesman Andy Barr on the phone earlier this afternoon, he wouldn’t say whether Franken had plans to fly to Washington.

“We’re not looking anywhere beyond the [canvassing board] meeting this afternoon,” Barr told me. When I asked if this meant that Franken had no imminent plans to head to the capital, he responded, “I’m not saying that,” adding, “He’s in Minneapolis and we’re looking forward to the canvassing board meeting.”

It’s entirely possible that the Democratic leaders in the Senate still haven’t worked out a game plan for Franken, especially since seating him could be difficult if they try to prevent Roland Burris from being seated. We should have a clearer picture by the end of the day.