Bench Memos

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Interesting Take--and What About Griffith?


An insightful reader makes some predictions (reacting to this morning’s Corner discussion in which I noted that the MOU does not mention Kavanaugh and Haynes):

You say, “I don’t understand why they weren’t mentioned in an MOU that went to the trouble of mentioning the other 5.”

Kavanaugh, Haynes were both left unmentioned. Thomas Griffith, another controversial nominee about to come to the floor, was also left out. I believe that these three will be the “test cases” for the “extraordinary circumstances” clause.

The three green-lighted nominees — Owen, Brown, and Pryor — were opposed only on grounds of ideology. There were no real character-related objections to them (besides “judicial temperment,” which really came back down to ideology.).

Saad and Myers, both thrown overboard, were also opposed for non-substantive grounds. Saad would tip the balance on the 6th Circuit and is hated by Reid. Myers would have been an “anti-green” on the West’s 9th Circuit. There were no character-related objections to either (except for Reid’s weird reference to Saad’s FBI file).

These five were handled in a straight-up trade. The Dems cave on three conservatives who were only opposed on ideological grounds, and the GOP tosses overboard the one (of four) 6th Cir. nominees who really drew fire, plus a nominee to a liberal court where he would have no marginal impact.

This leaves the other three, who share in common one important trait: they are opposed on ideological grounds PLUS there are major objections to their records:

1. Haynes, former [general counsel] of the Pentagon, is seen as being responsible for War on Terror policies that, critics claim, show a lack of respect for the Rule of Law.

2. Kavanaugh, former Starr investigator, is claimed to have been leak prone in an lawless political war on the Clinton Administration.

3. Griffith let his bar membership lapse while practicing in Utah.

(I’m not saying I agree with the portrayals[,] … I’m just echoing the critics.)

They will be the test cases for “extraordinary circumstances.” After much “deliberation” (or an attempt to put on such appearances), the Fabulous Fourteen will kill the Haynes and Kavanaugh nominations, and let Griffith (who Reid has already offered to support in previous negotiations) succeed. By doing this, the Fourteen can paint themselves as deliberative, nonideological, nonpartisan, and cohesive.


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