I'll have a hard problem voting for Mr. Haynes ... [b]ecause I believe that he was a responsible party at the Department of Defense at a time to come up with legal infrastructure in the War On Terror that really confused our troops. And I just don't want to make sure we put privates and sergeants in jail and fire the colonels. I think there has to be some accountability at the civilian side in the Department of Defense for creating policies that really have hurt the country.
When Hewitt pressed Graham to indicate whether, if the Democrats tried to filibuster the Haynes nomination, he'd nevertheless vote in favor of triggering the nuclear option (which would kill all filbusters of judicial nominees), Graham gave a very careful answer. He explained that while he wouldn't filibuster, and did not view the nomination as presenting "extraordinary circumstances" justifying a filibuster under last May's Gang of 14 deal, Democrats will "decide for themselves " whether the nomination presents extraordinary circumstances. Hewitt suggested that this "means that if the Dems attempt to filibuster Haynes, a show-down vote on the Constitutional Option [i.e. nuclear option] could be forthcoming."
But not so fast. Graham said nothing to suggest he'd take part in such an extreme measure, and never said he'd view a filibuster by others as unreasonable -- a necessary precondition to his voting in favor of the nuclear option. Nor, of course, did Graham maintain that the Senate would move forward with the nomination in the first place. In fact, what Graham told Hewitt was that the Republican leadership intends to move "four or five circuit guys out" in September. To our ears, Graham was talking about the path of least resistance -- which would be to move forward with Sixth Circuit nominees Stephen Murphy III and Raymond Kethledge, Second Circuit nominee Debra Livingston, and Third Circuit nominee Kent Jordan.