by Kagro X
Seventy-something days out from the election, and just in time for the post-Labor Day campaign busy season, the White House is rolling out a slate of five more judicial nominations for the appellate courts. With the elections so close and with Republicans, by most accounts, on the ropes, I'm sure Bush and company will be soft-pedaling the whole affair, steering clear of controversial nominations designed to provoke a fight they can ill-afford.
In a move to satisfy the GOP's most conservative supporters, President Bush on Wednesday nominated five people as appeals court judges, including one whom Democrats have threatened to block with a filibuster.
Goodness, but those boys at 1600 are bold! And timely, too!
News that Bush had decided to nominate the five conservative jurists came just before Bush spoke at a fundraiser for Bob Corker, who faces a tough Senate race against Democratic nominee Harold Ford Jr.
And they've clearly been cowed by the judicial pistol-whipping they've gotten from the judges who have warned them to stop legislating (or erasing legislation) from the White House.
"I need a U.S. senator who understands that we need people on the bench who will strictly interpret the Constitution and not use the bench to legislate," Bush said.
So, who's up this time?
A White House statement said Bush was nominating Terrence Boyle of North Carolina and William James Haynes II of Virginia to the 4th U.S. Circuit Court of Appeals in Richmond, Va.; Michael Brunson Wallace of Mississippi to the 5th Circuit in New Orleans; and William Gerry Myers III and Norman Randy Smith, both of Idaho, for the 9th Circuit in San Francisco.
Recognize anybody? How about Boyle, Haynes and Myers?
Boyle, of course, has had his nomination stalled since forever. Haynes is a torture memo author, and Myers was actually named in the "Gang of 14" deal as one of two judges (the other being Henry Saad) for which the signatories made no commitment for cloture.
Just to refresh some memories, here's a NY Times editorial from the "Way Back Machine," dated March 11, 2005, entitled, "They're Back, and Still Unworthy."
William Myers III, one of the seven filibustered nominees, has built a career as an anti-environmental extremist. He was a longtime lobbyist for the mining and cattle industries. Then, as the Interior Department's top lawyer, he put those industries' interests ahead of the public interest. In one controversial legal opinion, he overturned a decision that would have protected American Indian sacred sites, clearing the way for a company to do extensive mining in the area. Mr. Myers has been nominated to a seat on the United States Court of Appeals for the Ninth Circuit, based in San Francisco. That court plays a major role in determining the environmental law that applies to the Western states.
Terrence Boyle, who has been nominated to the United States Court of Appeals for the Fourth Circuit, based in Richmond, is also a troubling choice. He has an extraordinarily high reversal rate for a district court judge. Many of the decisions that have been criticized by higher courts wrongly rejected claims involving civil rights, sex discrimination and disability rights. Mr. Boyle's record is particularly troubling because the court reversing him, the Fourth Circuit, is perhaps the most hostile to civil rights in the federal appellate system, and even it has regularly found his rulings objectionable.
That Times editorial addressed the nominations of three judges. About the third, Thomas Griffith, the Times had this to say:
Thomas Griffith, who has been nominated to the powerful Court of Appeals for the District of Columbia Circuit, has the unfortunate distinction of having practiced law in two jurisdictions without the required licenses. While practicing law in Washington, D.C., he failed to renew his license for three years. Mr. Griffith blamed his law firm's staff for that omission, but the responsibility was his. When he later practiced law in Utah as general counsel at Brigham Young University, he never bothered to get a Utah license.
Judge Thomas Griffith has had a seat on the bench of the DC Circuit since June of 2005, three months after the Times noted he had no law license. Dry powder and all that.
Haynes is a protégé of Cheney’s influential chief of staff, David Addington. Addington’s relationship with Cheney goes back to the Reagan years, when Cheney, who was then a representative from Wyoming, was the ranking Republican on a House select committee investigating the Iran-Contra scandal. Addington, a congressional aide, helped to write a report for the committee’s Republican minority, arguing that the law banning covert aid to the Contras—the heart of the scandal—was an unconstitutional infringement of Presidential prerogatives. Both men continue to embrace an extraordinarily expansive view of executive power. In 1989, when Cheney was named Secretary of Defense by George H. W. Bush, he hired Addington as a special assistant, and eventually appointed him to be his general counsel. Addington, in turn, hired Haynes as his special assistant and soon promoted him to general counsel of the Army.
So here we are again, staring with disbelief at nominations long believed dead. Our powder dry, elections looming, and Republicans rewarding "reasonable" Democrats who avoided confrontation earlier in the session with mailings like the one below, which I showed you about a year ago.
Still, in your heart of hearts, you never really believed that playing nice would keep elected Democrats safe from attack, right? And in all likelihood, neither did the elected Democrats, though they might not have known what else to say at the time.
Straight up attacks, loathesome though they be, had to be expected. What's new here is the opportunity for sneak attacks.
Which makes this an opportune time to reexamine two particular provisions of the Gang of 14 deal, I think.
The first is Part I (entitled, "Commitments on Pending Judicial Nominations"), section B:
Status of Other Nominees. Signatories make no commitment to vote for or against cloture on the following judicial nominees: William Myers (9th Circuit) and Henry Saad (6th Circuit).
We're now forced to ask what it means that the White House apparently considers these to be "new nominations. From a release dated August 30, 2006:
President George W. Bush today announced his intention to nominate the following five individuals:
Terrence W. Boyle, of North Carolina, to be United States Circuit Judge for the Fourth Circuit
William James Haynes II, of Virginia, to be United States Circuit Judge for the Fourth Circuit
William Gerry Myers III, of Idaho, to be United States Circuit Judge for the Ninth Circuit
OK, so there's "no commitment" with regard to Myers, right? And that was generally taken to mean his nomination was dead, because the terms of the deal did not commit any of the signatories one way or the other to cloture. Meaning that the votes of signatory Democrats against cloture could not be used against them, or as grounds for signatory Republicans to vote for the nuclear option. That is to say that the now-infamous "extraordinary circumstances" language doesn't enter into the calculation, because that language isn't introduced until Part II of the deal.
But what's the title of Part II? "Commitments for Future Nominations."
See where this is going? Is Myers covered by Part I of the deal, which specifically names him and deals with "pending" nominations? Or does his purported "renomination" on August 30th make him a "future nomination," covered by Part II and the "extraordinary circumstances" test?
And what about the "renominations" of Haynes and Boyle? Are they "pending" nominees or "future" nominees? True, their names don't appear in Part I, section B as Myers' does, but all that means is that there was no deal reached on cloture commitments with regard to their nominations. Unless, of course, you believe (as some Republicans claim to) that a nomination is only "pending" if it's reported out of committee, and that nominations made but bottled up there exist in some sort of limbo that's neither "pending," nor... uh... some other thing, yet to be defined.
The second part of the deal that deserves a second look is in Part II, section B:
In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress, which we understand to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII.
The commitment, you'll recall, is to oppose the nuclear option in the 109th Congress. And we're about at the end of that. Which means we're just about at the end of the effective life of the deal, anyway. How bad do you think some of the signatories -- particularly those whose commitment to it was questionable from the beginning -- would feel about blowing it up just a few weeks before it was set to expire on its own?
And here's a new twist to think over: the efficacy of the deal was based on having just enough Senators from each party to make it work. Seven Democrats and Seven Republicans, each committed to denying their own party leaders the votes it would take to accomplish either the nuclear option or a successful filibuster, give or take one vote as a margin of error.
Can anybody think of a signatory whose value as a party-anchored counterweight might be in open question today? Let's say, someone who had lost their party's nomination for reelection, and who has opted to jump ship and run as an independent?
What would it mean to Lieberman to have the Republicans threaten the nuclear option in the closing days of the 109th Congress? What would it mean to Republicans to make that threat, knowing that the deal expires soon, anyway? Is the threat for real? Does it give Lieberman the chance to prove his "Democratic" bona fides and play the hero going into the stretch? Does it tempt Lieberman to side with Republicans in classifying these retreads as "future" nominations, failing to find "extraordinary circumstances," and letting them through, telling Connecticut's Dems only that they "should have thought of that before" bouncing him in the primary?
I don't know if anyone can tell where Lieberman's head is right now. But his reaction to these nominations might provide us with some clues, though they'll have to be parsed, picked over, and viewed through the "what is Karl Rove trying to make us think" prism -- not that anyone needs my encouragement to do that.
Par for the course, though, isn't it? Using the ambiguities in the deal to try to redefine its parameters? Just like, oh, well... everything. Torture. The scope of the "state secrets" privilege. The executive role in statutory interpretation. Traditional judicial deference to internal Department of Justice decision-making on redistricting. You name it.
And there couldn't be a more perfect time to test the durability of the nuclear option deal, could there?
"Oh, that only applies to 'pending' nominees," the Republicans will say.
Will Joe add, "Oh, that only applied to me when I was a Democrat"?