Big Lizards:Blog:Entry “Haynes On the Outside, Haynes On the Inside”

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July 20, 2006

Haynes On the Outside, Haynes On the Inside

Hatched by Dafydd

WARNING: I know absolutely nothing about this subject. And while that has never stopped me before, and doesn't stop me this time either, you might want to bear it in mind before commencing the reading process.

The Republican Party is in a lather over the nomination of William J. "Jim" Haynes II to the 4th Circus Court of Appeals: sometime Republican Sen. Lindsay Graham (R-SC, 96% -- but that was back in 2005) is fighting tooth and hammer to stop Haynes from getting on the court... or even getting an up-or-down vote.

From what I can gather, Graham is crusading on the rather dubious premise that Haynes, as General Counsel of the Department of Defense, put together a memo of interrogation techniques allowed to be used on terrorists held in Guantánamo. The memo was run past the Judge Advocate General (JAG) corps, which objected to some of the methods. The objections were for the most part accepted, and the revised list was sent to Secretary of Defense Donald Rumsfeld. All of which, according to Sen. Graham, amounts to dissing Graham's beloved JAGs.

Don't worry, I didn't follow it either, and I wrote it.

But for some reason -- whether it's this stupid excuse or because Graham is serving as an errand boy for Sen. John McCain (R-AZ, 72%) -- Graham is pulling out all the slops to squash Haynes like a bug. So why would McCain have such a bee up his britches about Haynes? Possibly because McCain is hypersensitive about any variety of harsh interrogation techniques, for reasons that should be obvious (though it's not obvious why American interrogators speaking harshly to Ramzi Binalshibh should remind Sen. McCain of the Hanoi Hilton).

The problem is that Sen. Graham has an extraordinary amount of clout on this nomination, possibly because he's one of the senators from South Carolina... which just happens to be contained within the jurisdiction of the 4th United States Circuit Court of Appeals, to which Haynes is nominated.

The Senate has always given individual senators amazing leeway to stymie the judicial nomination process (and the legislative process, for that matter). Under some obscure Senate ukase -- which I believe dates back to Pippin the Middle, whose illegitimate son, Charles Martel, defeated the Moslems at the Battle of Tours in A.D. 732, founded the Carolingian dynasty, and incidentally invented Reese's Peanut Butter Cups -- any senator can simply fail to return a "blue slip" for any federal judge nominated to the senator's state, and that judge is blocked.

Now I don't think "blue slips" have ever been used to block nominees to the Court of Appeals; it's the most unheard-of thing I've ever heard of. But evidently, even without threatening an actual blue-slip block, Graham's opinion is being given inordinate weight.

"Hey," say the other senators, "he's from South Carolina, so he must know more than the rest of us do about a nominee who might end up serving on the Appellate Court that serves South Carolina" -- even though Haynes himself is from Texas (Fifth Circuit). Makes sense to me.

So the obvious, outside-the-box solution from Big Lizards would ordinarily be for President Bush to short-circuit (sorry) the problem by withdrawing Haynes from his Fourth-Circuit nomination (and Graham's clutches) and nominating him to some other circuit, one that doesn't have an insane person serving as senator.

But are there any such open circuits available? As we look, using our two criteria -- a vacancy on the court, and none of the states in its jurisdiction having a madman for a senator -- we rapidly run out of circuits.

Highly self-explanatory map of numbered U.S. Circuit Courts of Appeal

There are eleven numbered circuits that correspond to clumps of states, plus a couple of wild cards; here is the list, along with any potential nutcases who could torpedo the whole scheme. Remember: the percent following a Republican senator's name is a measure of how "Republican" he is; while following a Democratic senator's name, it's a measure of how "Democratic" he is:

For the First Circuit, you have to contend with Sens. Kennedy (D-MA, 95%) and Kerry (D-MA, 100%) of Massachusetts and Sens. Snowe (R-ME, 32%) and Collins (R-ME, 32%) from Maine. Besides, there are no vacancies;

For the Second, you're stuck with Sen. Hillary Clinton (D-NY, 100%). It has a judicial vacancy, but Bush has already chosen a nominee. Not that it matters... I mean, Sen. Clinton?

In the Third, we have a vacancy, and there's not even a nominee pending! Unfortunately, we also have Sen. "Slow" Joe Biden (D-DE, 100%)... 'nuff said;

The Fourth takes the Fifth, since that's what he's already nominated for;

The Fifth would actually be somewhat appealing (sorry), as the only iffy senator in Louisiana, Mississippi, and Texas is Sen. Trent Lott (R-MS, 91%) -- and only because he might still be nursing a grudge against President George W. Bush for helping nudzh Lott out the door of his Majority Leadership. The other five senators are relatively sane, even the lone Democrat, Mary Landrieu (D-LA, 95%).

Alas, the only vacancy is for an "opinion specialist," whatever the Sam Houston that is (please note the local color in Big Lizards choice of expressions, dadburn it). The longhorn and the shorthorn is that there are no judicial vacancies on this circuit court;

The Sixth is larded up with Sens. Carl Levin (D-MI, 100%) and Debbie Stabenow (D-MI, 100%), who have already played these reindeer games with a wig of judges nominated for Michigan, including Henry Saad. Two vacancies, two pending nominees;

The Seventh is infested with Sens. Durbin (D-IL, 100%), Obama (D-IL, 100%), and Feingold (D-WI, 100%). Need one say more? Besides, no room at the inn;

The Eighth is redolent with Chuck Grassley (R-IA, 96%) and Tom Harkin (D-IA, 100%). Nuttin', honey;

And the Ninth is -- well, it's the Ninth. You've got your Barbara Boxers (D-CA, 100%) and your Dianne Feinsteins (D-CA, 100%), your Inouyes (D-HI, 90%) and your Akakas (D-HI, 95%), your Baucuses (D-MT, 90%), your Harry Reids (D-NV, 100%), Patty Murray (D-WA, 95%), Maria Cantwell (D-WI, 95%), and of course, controlling all, you have "the Kingpin," John S. McCain (R-AZ, 80%) himself. Two and two, no room there;

The Tenth Circuit doesn't have a senator problem; however, it's probably already a strongly conservative court... so adding Haynes to the roster probably wouldn't do much good. Both vacancies have nominees already;

How about the Eleventh? Alas, that has Bill Nelson (D-FL, 80%); although he's running for reelection, it looks as though his opponent will be Katherine Harris. Harris did yeoman work as the Secretary of State in 2000, preventing Al Gore from stealing the election the easy way: by cheating on the ballots. (Gore was forced to try to steal it the hard way, suing his way into the White House; fortunately, that was more than he could chew, and he remains Citizen Gore). Harris, however, gives Nelson no challenge at all... thus no need for Nelson to try to placate the Right by letting Haynes be nominated to that circuit. Even if there were any vacancies, which there aren't.

We ignore the goofy U.S. Court of Appeals for the Federal Circuit; we don't need Jim Haynes poring over 2,773-page patent application legal briefs.

So you see the problem.

Which bringes us to the DC Circuit, which might be politic (sorry), as no senator can claim to have an especial affinity for Washington D.C., since that's where they all live during the 18 or 19 days the Senate is in session each year.

There are two vacancies on the DC circuit, but the White House has only nominated one replacement. Aha. Since the DC Circuit is very influential, it's a good spot to put a solidly consertative judge (having a conservative judicial philosophy, not in terms of how he votes on election day).

However, now that I think about it, there is a huge problem associated with renominating William J. Haynes II, or any other judicial nominee, to a different circuit court: he would have to start the process all over again... including testimony before the Senate Judiciary Committee (the J-Com) -- which is just where he is now anyway!

This would give all his enemies the chance to re-interrogate him like a T-man grilling one of Frank Nitty's boys. (Or like a Ballpark Frank, which plumps when you cook it, finally splitting its sides if you keep it on the hotseat too long.)

Unfortunately, this brings us right back where we started: Haynes is the nominee to the Fourth Circus Court of Appeals, and that's where he has to stay. This box has no "outside" to it, and this entire post has been nothing but a colossal waste of your time.

Now you may kill me. But don't say I didn't warn you.

Hatched by Dafydd on this day, July 20, 2006, at the time of 4:42 AM