Virginia Attorney General Ken Cuccinelli seems destined to lose the next round of his lawsuit challenging the constitutionality of Obamacare, and he can blame South Carolina Republican Senator Lindsey Graham for it.
At the Fourth Circuit U.S. Court of Appeals, Cuccinelli drew a horribly liberal three-judge panel to hear his case. Two of the judges are Obama appointees, and one is a Clinton appointee. The two Obama appointees should not even be on the court — but they are because of failures by, or the outright underhandedness, of Graham. If Graham had worked harder to force approval of GW Bush judicial nominees for his own Fourth Circuit, the Circuit would remain among the most conservative in the nation, rather than now trending liberal.
Both of the Obama appointees came for seats that stood vacant during the entire eight years of the Bush presidency. Yes, eight whole years. Maryland’s Andre Davis filled a seat to which US Attorney Rod Rosenstein had been nominated by Bush. So solid were Rosenstein’s credentials that even the liberal Washington Post editorialized not just in his favor, but impassionedly in his favor, several times. Yet he never even received a vote. North Carolina’s James Wynn came from a state that for two of those eight years enjoyed two Republican senators — thus, no “blue slip” problem — while Republicans held a strong 55-45 majority in the Senate. In short, there should have been no reason at all not to fill that seat.
Meanwhile, a South Carolina seat (Graham’s home state!) and a Virginia seat also went unfilled for years, with the Virginia seat also open during the two years of highest Republican ascendancy and with two GOP home-state senators.
Why is this in large part Graham’s fault? Several reasons.
First, he was a key player on the Judiciary Committee. Judiciary Committee members worth their salt will at least usually be able to push through the nominees from their own state, especially when both senators from the state approve. Graham in particular, if his own boasting were to be believed, should have been especially able to secure approval for nominee Steve Matthews — because his vaunted “outreach” to Democrats, via the “Gang of Fourteen” (about which more in a moment) and otherwise, should have given him even more sway with Demo committee members than an ordinary GOP committee member would have had. Instead, for all of his bipartisanship (or actual defections to the Dems), Graham was powerless to gain the approval for Matthews — if he even tried. It is highly possible that he didn’t really try, because he was trying to screw over the Bush administration for not nominating some lackey of his own. Either way, that South Carolina vacancy, later filled by Obama nominee Albert Diaz, can be laid at Graham’s door.
Then there is the Gang of Fourteen in general. The alternative to the Gang of Fourteen deal was to employ a parliamentary maneuver called the “constitutional option” that would have ruled a permanent filibuster out of order if used to kill a judicial nomination (and only if used against a judicial nomination). It was Graham, more than any other single member, who negotiated the Gang of Fourteen deal that killed the constitutional option. After the deal, all nominees were supposed to get final floor votes (without filibuster) unless they represented “extraordinary circumstances.” Gee, that didn’t work. After the Gang deal, fewer Bush nominees made it through the Senate during a time of GOP majority than the number of CLINTON nominees who made it through the Senate while the GOP held a majority. In other words, a Republican Senate was kinder to Clinton than it was to Bush. That’s hardly a triumph for Graham and his Gang.
Then there is the Virginia seat. Not one but three Bush nominees were serially blocked, two of them while Republicans held total sway. (Ironically, one of them, E. Duncan Getchell, is now the Virginia Solicitor General who will argue Cuccinelli’s case before the Fourth Circuit.) One of them was not just a failure of Graham to effectively support, but instead a victim of Graham’s deliberate sabotage. William J. Haynes was a superb nominee and was senior counsel at the Pentagon. Graham joined the Dems in effectively accusing Haynes of being responsible for “torture” of enemy detainees, even though the plain truth is that Haynes was instead responsible for reining in the amount and intensity of “enhanced interrogation” that was used. The real story was that Graham blocked Haynes because of a personal vendetta involving Air Force JAG rivalries against civilian Air Force attorneys. It was a petty vendetta, and one for which Haynes really was a mere stand-in for Graham’s ire, not even a real party to the dispute.
Publicly, for a long time, Graham refused to acknowledge responsibility for blocking Virginia’s Haynes (who originally also hailed from his home state of South Carolina, and who attended college in North Carolina, so he had ties to three of the four Fourth Circuit states), but then Graham bragged about it at a primarily liberal event (if my sources are accurate).
The reason all this is important is because a three-judge panel is chosen randomly by computer. But if there are more conservative judges to choose from, the odds of the computer assigning conservative judges to a particular case are obviously much higher. The leftist panel selected for the Cuccinelli case would almost assuredly not have been chosen (heck, two of them would not even have been on the court) if the Fourth Circuit remained a stalwart conservative bench — which it would have if Republicans, led by Graham, had fought harder and smarter to get Bush’s nominees approved.
Instead, the Fourth Circuit now leans left. Even if Cuccinelli appeals a bad three-judge panel decision to the whole circuit court en banc, the odds are at least slightly against him winning at that level. (Of course, he’ll still have a decent shot at winning at the U.S. Supreme Court, but that’s another story.)
And it really is Lindsey Graham’s fault.