The Not So Dirty Dozen
There were times last week that Senate Majority Leader Bill Frist appeared to morph into North Korean President Kim Jong Il -- threatening the use of “the nuclear option” while demanding a nonaggression pact from the Democrats. At issue is the possible Democratic filibuster of as many as 12 Bush administration nominees to the powerful Circuit Courts of Appeals, and Frist’s threat to use a procedural vote to blow that filibuster to kingdom come.
The decision to nuke or not to nuke has obscured the real issue: Are the Republican nominees qualified or are they flat-Earth idiots? As a pro-choice social liberal, I didn’t find much reason to like these nominees. However, I also found little basis for a filibuster in most cases. Indeed, for senators not eager to trigger mutually assured destruction, there is room for compromise.
Consider the three Michigan judges nominated for the 6th Circuit Court of Appeals. There is no compelling reason why Richard A. Griffin, Susan Bieke Neilson or Henry W. Saad should be barred. Judged well qualified by the American Bar Assn., their sin appears to be that Republicans failed to consult on their nominations with Michigan’s two Democratic senators.
Then there is David W. McKeague, a well-regarded federal trial judge in Michigan, also nominated to the 6th Circuit. The only claim Democrats make against him is that he lacks the proper “temperament” -- a term used when a politician can’t find a real reason to oppose a nominee.
Presidential aide Brett M. Kavanaugh served with the independent counsel during the Monica Lewinsky affair. He’s now being attacked as if he stuffed trunks for the Gambino crime family.
As for Thomas Griffith, another presidential assistant, he was suspended from practice for failure to pay his bar dues -- but that’s a distinction shared by thousands of lawyers. He is also accused of practicing without a license in Utah, as general counsel of Brigham Young University. However, five former presidents of the Utah bar have supported his position: “Close association” with members is sufficient. Last week, four Democrats belatedly recognized that Griffith is no threat to the Republic and sent his nomination out of committee to the full Senate.
Two other nominees have been blocked because they are “extremists.” William H. Pryor Jr. is undeniably conservative. However, the test is not whether a judge has conservative or liberal views but whether he will yield to the demands of the law despite such views. Pryor has proved that he can do that. While Alabama attorney general, he vigorously prosecuted former Alabama Supreme Court Chief Justice Roy Moore for refusing to remove the Ten Commandments from the courthouse -- despite his personal agreement with Moore’s legal view on the issue.
Janice Rogers Brown of the California Supreme Court is equally conservative -- she once called the New Deal a “socialist revolution.” But however inflammatory her remarks outside the courtroom, Brown’s legal opinions show a willingness to vote against conservative views, particularly in criminal cases, when justice demands it.
Terrence W. Boyle has been blocked over concerns about competence not conservatism. He has earned a high number of reversals for “plain error” but the situation isn’t extreme enough to justify a filibuster as opposed to a “no” vote -- particularly given his “well qualified” ABA ranking.
For nine of the Republican nominees, Democratic opposition looks as principled as a drive-by shooting. In fairness, the remaining three nominees raise legitimate concerns.
Democrats are on good ground in filibustering William J. Haynes II, who signed a memo that appeared to justify torture of POWs and suggest that the president could override federal law -- an extreme view that preceded abuses at Abu Ghraib and Guantanamo.
Then there’s 9th Circuit nominee William G. Myers III, a former mining lobbyist who, as an Interior Department official, advocated extreme-right positions on Native American and environmental issues, often in contravention of accepted law. Given the centrality of such issues to the 9th Circuit, there is reason to bar his confirmation.
Finally, there is the closer case of Priscilla R. Owen. She has a “well qualified” ABA rating but she is also indelibly marked by a prior public rebuke. Atty. Gen. Alberto R. Gonzales, her colleague on the Texas Supreme Court, said she engaged in “an unconscionable act of judicial activism” in restricting a minor’s access to an abortion. That and other charges of activism leave Owen damaged goods for confirmation.
There is a dirty little secret behind the not so dirty dozen: Neither the Republicans nor the Democrats care that much about their records because the fight over these nominees is just a rehearsal for the upcoming war over Supreme Court nominees.
Hostilities should cease. Democrats disinclined toward apocalypse should confirm Brown, Griffith, Griffin, Kavanaugh, McKeague, Neilson, Pryor, Saad and Boyle. That should shame the president into withdrawing Haynes, Myers and Owen.
No one will be 100% happy -- and in today’s lethal political environment that would be a very good sign.
Jonathan Turley teaches law at George Washington University.