Lindsey Graham (R-Wash Post) has duly received praise from “constituents” Dana Milbank and David Broder for deferring to the president’s nomination of Elena Kagan. But Graham was not willing to defer to the nomination of Jim Haynes to the Fourth Circuit of Appeals by President George W. Bush. Graham did not just refuse to vote to confirm Haynes; he acted to prevent Haynes from even getting an up-or-down vote.
Graham’s opposition to Haynes related to Bush administration terrorist detainee policy. Haynes was involved with that policy as General Counsel at the Department of Defense. However, he did not formulate it. The government’s legal position was developed at the Department of Justice, apparently with the substantial involvement of Vice President Cheney’s staff. Haynes, in fact, recommended against a number of interrogation techniques, all deemed lawful by the Department of Justice, that Secretary of Defense Rumsfeld approved.
Haynes, though, alienated certain high-level JAG lawyers, who claimed — falsely — that he was not attentive to their concerns about administration policy with respect to interrogating detainees. Graham is himself a JAG lawyer and has a strong sentimental attachment to the JAG corps. Haynes’ imagined affronts to JAG brass trumped Graham’s willingness to defer to a Republican president.
But what about Kagan’s affront to military lawyers? Unlike Haynes, who simply disagreed with some military lawyers on complex issues, Kagan treated military lawyers as second class citizens, refusing to give them the same privileges granted to every other employer interested in recruiting at Harvard Law School. But Graham dismissed this problem. In a rambling explanation he said, in essence, that the mistreatment of military recruiters said more about Harvard than about the military, and that he was sure Kagan “loves the military as much as anybody else.”
The two points cannot be reconciled. “Harvard” in this case was Kagan. And if her treatment of military recruiters says more about her than about the military, what does it say about her? At a minimum, it says that Kagan does not love the military as much as Jim Haynes, who served in it. Certainly she does not love it more than Haynes does. Yet, Graham would not defer to the president when it came to Haynes.
Graham’s incoherence strongly suggests that he and his pals in the JAG brass from whom he takes his cues didn’t really mind seeing military lawyers treated as second class citizens by Harvard. Or maybe the common thread in Graham’s treatment of Haynes (who devoted part of his life to serving in the military) and Kagan (whose “love” for that institution Graham takes on faith) is that opposing Haynes and supporting Kagan would both earn Graham praise from the Washington Post.
In any case, Graham’s deference in these matters seems to be towards players other than the president.
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