If McCain won’t forget, neither should we

Ed Whelan reports (via “a senior staffer in Senate leadership”) on the outlook for stalled judicial nominees. According to Ed’s source, the Senate “will likely turn to floor action” on Terrence Boyle (4th Circuit) and Brett Kavanaugh (D.C. Circuit). William Myers (9th Circuit) remains stalled while “Republican Senators sort[] out how his testimony on one issue meshes with the documentary record.” Finally, Ed’s source reports that John McCain is committed to preventing the confirmation of Jim Haynes (4th Circuit), and McCain’s side-kick, Lindsey Graham, will keep Haynes from getting out of the Judiciary Committee.

As I have argued, Haynes, an outstanding public servant, is being made the scapegoat for questionable legal advice provided by the Justice Department with respect to the interrorgation of detainees. Haynes used that advice to provide guidance to the military, as he should have. If Haynes had provided legal advice inconsistent with the position of the Justice Department, he would have demonstrated a lawlessness that might constitute grounds for blocking his confirmation.

If McCain wants to punish an administration official for playing a key role in the development of our policy on interrogating detainees, a better target would be Attorney General Gonzales. The “offending” legal advice was prepared for Gonzales who then was the president’s counsel. Unlike Haynes, Gonzales arguably was in a position to cause the Justice Department’s position to be rejected.

But going after Gonzales would have injured McCain’s attempt to cast himself as a friend of the White House. Blocking Haynes, McCain must assume, carries no cost. And perhaps it doesn’t. But a pattern of these sorts of cyncial calculations might.


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