Slate's Jurisprudence: Defusing the 'Nuclear Option'

As part of the Senate compromise on judicial nominees, Senate Democrats held firm on blocking two of President Bush's picks: Henry Saad and William Myers. Slate contributor Emily Bazelon discusses the significance and backgrounds of Saad and Myers.

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MADELEINE BRAND, host:

As part of the compromise, Senate Democrats held firm on blocking two of President Bush's judicial nominees: Henry Saad and William Myers. So just who are these two? Joining us is Slate and DAY TO DAY legal analyst Emily Bazelon.

And, Emily, we haven't heard a lot about Saad and Myers, so let's start with Henry Saad. What's his story?

EMILY BAZELON reporting:

Henry Saad is a nominee to the 6th Circuit Court of Appeals. He is a former law professor who has been on the Michigan State Court of Appeals since 1994. And he would be the first Arab-American to be appointed to the 6th Circuit, which covers Kentucky, Ohio, Tennessee and Michigan. Saad is a member of the conservative Federalist Society, and liberal groups say that he has been unsympathetic to workers with valid claims, and that he has ruled against people with harassment and wrongful-termination grievances, and against whistle-blowers.

BRAND: And what about William Myers?

BAZELON: Myers is a nominee to the 9th Circuit on the West Coast. And he began his career as an aide to Wyoming Senator Alan Simpson, who's a strong conservative. He has worked as a lobbyist for the mining and cattle industries, and as the lead lawyer for the Interior Department under the Bush administration. He's been a staunch opponent of federal restrictions on the use of public lands. That's probably what he's best known for. At a speech before the Cattlemen's Association that he gave while he was at the Interior Department, he said, quote, that "the biggest disaster now facing ranchers is not nature but a flood of regulation." And the Native American group called the National Congress of American Indians opposes Myers' nomination. He is known for having tried to open a gold mine that would have prevented a particular tribe from practicing their sacred traditions.

BRAND: And, Emily, two liberals, liberal Democrats--are these two even more objectionable than the three judges we've heard a lot about, Owen, Brown and Pryor?

BAZELON: Not really. And it may be that Myers' and Saad's nominations are being blocked as much because of the courts that they would join as because of their views. The 9th Circuit is a sharply divided court ideologically, and every judge matters for tipping the balance of power there. And that's also true on the 6th Circuit. And there's also some history within in the 1st Circuit that I think affects why Saad's nomination has been blocked. The court had multiple vacancies for a long time, and there were two Clinton nominees who never got a vote on the Senate floor. And then President Bush has been able to already appoint four new judges to the 6th Circuit. And now there are six Democratically appointed judges and six Republican-appointed judges. So the court is exactly divided.

BRAND: And now let's go to the question that everyone's talking about: How will all this affect the Supreme Court and any nominations there?

BAZELON: I think that's really not clear at all. It seems that the wording of the deal allows both sides both sides to claim that they have a lot of flexibility left. If the Democrats don't like the next Supreme Court nominee from President Bush, they'll presumably say that this is the extraordinary circumstance in which they can still filibuster. And the Republicans can say, `No, it's not. And since you're breaking the deal, we can invoke the so-called nuclear option to end the filibuster.'

So I think the battle over the next Supreme Court nominee is going to be a tough one, and it's still yet to be fought.

BRAND: Opinion and analysis from Emily Bazelon. She writes the Jurisprudence column for Slate. Thanks, Emily.

BAZELON: Thank you.

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