May 13, 2005,
As the Senate edges closer to a showdown on the issue of Democratic filibusters of the president's judicial nominees, Republicans on Capitol Hill are angry at remarks by Senate Minority Leader Harry Reid which they say smeared one of those blocked nominees.
During a debate about the filibusters Thursday, Reid, who has made a series of controversial statements about President Bush, Federal Reserve Chairman Alan Greenspan, Supreme Court Justice Clarence Thomas and others in recent months, brought up the subject of Henry Saad, a nominee to a seat on the Sixth Circuit Court of Appeals. "Henry Saad would have been filibustered anyway," Reid said. "He's one of those nominees. All you need to do is have a member go upstairs and look at his confidential report from the FBI, and I think we would all agree there is a problem there."
Stunned Republicans say such a public description of a confidential FBI background report clearly stating that it contains negative information is, in the words of one GOP official, "deeply unethical." "He didn't reveal the contents, he just implied that something serious was there," says the Republican. "To drag this into the public debate is just totally improper."
Saad, along with three other Bush picks for the Sixth Circuit, has been blocked by Michigan Senators Carl Levin and Debbie Stabenow, not because of any ideological objections but because Levin and Stabenow are angry that two Democratic nominees for the Sixth Circuit were not confirmed by the Republican-controlled Senate during the Clinton years. Levin is said to be especially angry because one of those Clinton nominees, Helene White, is the wife of one of Levin's cousins. Despite that anger, in recent weeks, Reid has offered to drop the Democratic blockade of three of the Bush Sixth Circuit candidates Richard Griffin, David McKeague, and Susan Bieke Neilson but has pointedly left Saad out of that group.
Republicans believe that is because Saad, who is currently a judge on the Michigan State Court of Appeals, angered Stabenow in September 2003 when he criticized her actions in blocking his nomination. In an e-mail to a supporter, Saad wrote of Stabenow, "This is the game they play. Pretend to do the right thing while abusing the system and undermining the constitutional process. Perhaps some day she will pay the price for her misconduct." But it was Saad who paid the price, because he mistakenly sent the e-mail not only to his supporter but to Stabenow's office. Stabenow immediately protested to the White House, which answered by re-nominating Saad last January.
Before the e-mail incident, there had been no public mention of any issue with Saad's FBI background report. Saad was nominated on November 8, 2001. He received a confirmation hearing before the Judiciary Committee on July 30, 2003. Democrats boycotted the hearing and made no public reference made to any background problems. The committee approved Saad in a straight party-line vote on June 17, 2004.
Before the vote, on June 3, 2004, Sen. Patrick Leahy, who was angry that then-chairman Orrin Hatch was pushing the Saad nomination through the committee, and who had access to FBI material on Saad in his role as ranking Democrat on the committee, made a public reference to Saad's background check, saying it contained allegations of a "very serious nature." Leahy did not elaborate.
After the committee vote, in a statement on the Senate floor on July 21, 2004, Levin said that he and Stabenow had met with the committee and "we went into some detail then that it is our belief that his judicial temperament falls below the standard expected of nominees to the second highest court in this country." Like Leahy, Levin did not elaborate.
The next day, July 22, 2004, Leahy took to the Senate floor to denounce the Michigan nominees. Of Saad, Leahy said, "I also have concerns about the nominee, his legal judgment, and his ability to be fair." Leahy criticized Saad's work as a private attorney and on the Michigan Court of Appeals, saying Saad "frequently favored employers in complaints brought by workers." Leahy then said, "I cannot speak in open session about all concerns, but I can note a temperament problem, as evidenced by an e-mail [Saad] sent, a copy of which he mistakenly sent to Sen. Stabenow as well." Leahy said the e-mail was evidence of "not only shockingly bad manners, but appalling judgment and a possible threatening nature."
FBI background reports even descriptions of FBI background reports are supposed to be confidential. In the early 1990s, the Judiciary Committee agreed to severely limit access to FBI background checks after the first President Bush, angry at leaks during the Clarence Thomas confirmation fight, refused to give FBI information to the Senate. Since then, the reports have been made available only to members of the Judiciary Committee and a nominee's home-state senators, who in the case of Saad are Levin and Stabenow.
Byron York, NR's White House correspondent, is the author of the new book The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President and Why They'll Try Even Harder Next Time.