Senate Democrats said yesterday that they are considering a filibuster of President Bush’s latest nominee to the federal appeals court.
“We’ll do whatever is necessary to protect the judiciary,” Senate Minority Leader Harry Reid told reporters yesterday when asked whether Democrats would block the nomination of William J. Haynes II to the U.S. Court of Appeals for the 4th Circuit, based in Richmond.
A filibuster would set up the first test of Majority Leader Bill Frist’s promise to employ the “nuclear option” to stop Democrats’ efforts to block judicial nominations.
The situation could become more dramatic because at least one Republican who has been key to preventing filibusters in the past year has raised doubts about whether he will support Mr. Haynes’ confirmation.
Sen. Lindsey Graham, South Carolina Republican, gave Mr. Haynes a tough grilling yesterday in a rare second confirmation hearing before the Judiciary Committee.
Mr. Graham and several other key Republicans have been critical of the way Mr. Haynes and other Pentagon lawyers drafted administration policies for handling battlefield suspects in the war on terror. Mr. Graham said yesterday that internal memos — which were later repudiated by the administration — led at the very least to confusion among U.S. troops over the degree to which prisoners can be interrogated.
“Time and again, on some of the most fundamental questions of law and policy that have come before the Department of Defense, Mr. Haynes has displayed a shocking failure of legal and moral leadership,” said Sen. Edward M. Kennedy, Massachusetts Democrat. “It is astounding that the administration would continue to press his nomination, even though the subordinates who have followed the policies he authorized have gone to prison.”
While Mr. Haynes was outright condemned by Democrats on the panel, his sparring with Mr. Graham was the sharpest as the senator tried to determine how involved Mr. Haynes was in the original policy memos.
Later, outside the hearing room, Mr. Graham dodged reporters’ questions about whether he could support the nominee.
“Actions have consequences,” he said.
Further complicating the situation is that Mr. Graham is among the so-called “Gang of 14” senators — seven Democrats and seven Republicans — who have made a pact to prevent filibusters except in the case of “extraordinary circumstances.” In return, Republicans such as Mr. Graham promise not to go along with the “nuclear option” unless Democrats lodge a frivolous filibuster.
After his dust-up with Mr. Haynes at yesterday’s hearing, Mr. Graham declined to even rule out that Mr. Haynes poses the “extraordinary circumstance” that would warrant a filibuster.