Minority Leader Harry Reid strayed from his prepared remarks on the Senate floor yesterday and promised to continue opposing one of President Bush's judicial nominees based on "a problem" he said is in the nominee's "confidential report from the FBI."
Those highly confidential reports are filed on all judicial nominees, and severe sanctions apply to anyone who discloses their contents. Less clear is whether a senator could face sanctions for characterizing the content of such files.
"Henry Saad would have been filibustered anyway," Mr. Reid said on the floor yesterday, about the Michigan Appeals Court judge who is nominated to the U.S. Court of Appeals for the 6th Circuit.
"All you need to do is have a member go upstairs and look at his confidential report from the FBI, and I think we would all agree that there is a problem there," Mr. Reid continued.
Republican staff members and supporters of Mr. Bush's nominees were outraged.
"Can you think of a better way to trash someone's reputation?" Sean Rushton of the conservative Committee for Justice asked after seeing a transcript of the remarks. "Say that there is bad stuff from an FBI investigation in a file somewhere and leave that hanging. This is character assassination of the lowest order and completely improper."
Republicans on Capitol Hill weren't saying much publicly, but several denounced the action privately as an "underhanded smear" or worse.
Sen. Orrin G. Hatch, Utah Republican who was chairman of the Judiciary Committee when Judge Saad faced his latest background investigation, declined to discuss the matter.
"As important as Senator Hatch thinks these comments are, he never comments on FBI reports or anything pertaining to them, and he doesn't believe anybody else should either," Hatch spokesman Peter Carr said.
Republican aides pointed to Standing Rule of the Senate 29, Section 5: "Any Senator, officer, or employee of the Senate who shall disclose the secret or confidential business or proceedings of the Senate, including the business and proceedings of the committees, subcommittees, and offices of the Senate, shall be liable, if a Senator, to suffer expulsion from the body; and if an officer or employee, to dismissal from the service of the Senate, and to punishment for contempt."
Furthermore, a "Memorandum of Understanding" covering the use of FBI background reports limits access to committee members and the nominee's home-state senators. Mr. Reid would fall into neither category.
Reid spokesman Jim Manley referred to an incident in June when the Senate Judiciary Committee met behind closed doors to review Judge Saad's file and inadvertently left a microphone turned on that broadcast part of the secret hearing onto the Internet.
"The fact that there's an issue regarding Henry Saad's background is well-known," said Mr. Manley, who noted that Mr. Reid did not disclose any specifics from the file. "It's been discussed both in committee and on the floor before."
Still, Mr. Reid's comments weren't part of his prepared remarks.
"One of the three 6th Circuit nominees who were previously filibustered -- Henry Saad -- would have been filibustered anyway because there are serious concerns about his suitability to be a federal judge," said his prepared statement, provided by his office.
Furious Saad supporters said they had never heard about the previous committee leak and called Mr. Reid's remarks an "unfounded smear" indicative of how nasty the debate over judges has become.
"Harry Reid is a disgrace to the Senate and to [his] Church of Latter-day Saints," said Manuel Miranda, who was forced to resign as a Republican Senate staffer after downloading files on judicial nominees from Democratic computer servers.
"Both bodies should censure him," said Mr. Miranda, who leads a private advocacy group for Mr. Bush's judicial nominees.
Michael Bouchard, sheriff of Oakland County in Michigan and a personal friend of Judge Saad, said he is "absolutely" certain that the FBI file doesn't contain anything damaging.
"I think Harry Reid is lying," he said. "He's hiding behind something he knows he'll never be asked to show. Harry Reid is a coward."
Confidants of Judge Saad said yesterday that the judge would release the file but that he has never seen it, let alone obtained copies of it. Judge Saad is not permitted to see the file, Senate staffers said.