Following the bipartisan Senate agreement allowing floor votes on three of President Bush's appeals court nominees, Roll Call executive editor Morton M. Kondracke claimed that Democrats will not filibuster two nominees not mentioned in the agreement, William Haynes II and Brett M. Kavanaugh, because they are “non-controversial.” In fact, Senate Democrats reportedly regard the Haynes and Kavanaugh nominations as problematic and plan to filibuster both.

The May 23 Memorandum of Understanding on Judicial Nominees, drafted by a bipartisan group of 14 senators, allowed Senate-floor votes on Priscilla Owen, Janice Rogers Brown, and William H. Pryor, but stated that the parties made “no commitment to vote for or against cloture” on U.S. 9th Circuit Court of Appeals nominee William Myers or 6th Circuit nominee Henry Saad.

News reports indicate that Democrats intend to filibuster Haynes and Kavanaugh. The New York Times reported on May 25:

Democratic lawmakers and senior aides said they had assurances from six of the seven Democrats who participated in reaching the agreement that Mr. Haynes and Mr. Kavanaugh -- who at one point had been named specifically in the agreement but were dropped in later drafts -- would be opposed.

''We feel we have a strong commitment from our colleagues that Kavanaugh and Haynes will not go forward,'' said Senator Richard J. Durbin of Illinois, the No.2 Democrat.

Conversely, Republicans reportedly intend to use the planned filibuster of Haynes and Kavanaugh's nominations to reopen the debate over judicial filibusters. According to a May 25 Washington Post article:

“This is a truce, not a treaty,” said Sen. Orrin G. Hatch (R-Utah). He criticized the agreement and predicted the GOP majority soon will be back on the verge of voting to bar filibusters of judicial nominees. Disputes over two appellate court nominees not mentioned in the accord -- Brett Kavanaugh and William J. Haynes II -- threaten to renew sharply partisan debates next month, Hatch and others said.

Beyond the controversy over the planned filibusters, critics have questioned Haynes and Kavanaugh's fitness to be federal judges.

William Haynes II

Haynes was nominated to the U.S. 4th Circuit Court of Appeals. He is currently general counsel for the Defense Department and was involved in setting U.S. policy concerning detention and interrogation of suspected terrorists at Guantánamo Bay, Cuba. Official investigations have faulted these policies, which denied prisoners protections afforded by the Geneva Conventions, for contributing to prisoner abuses in Iraq. The New York Times reported on December 24, 2004, that Haynes was “deeply embroiled in controversy over memorandums he wrote or supervised that secretly authorized harsh treatment, even torture, for detainees held at Guantánamo Bay, Cuba, and in Iraq.” The Times reported on September 10, 2004, that two former Defense secretaries whom the Pentagon charged with investigating detainee abuses singled out Haynes during a hearing before the House Armed Services Committee for failing to properly oversee the development of interrogation policies:

In testimony before the House panel, two former defense secretaries [James R. Schlesinger and Harold Brown] said that failures on the part of two of Mr. Rumsfeld's top deputies to properly oversee the development of interrogation policies for Iraq had contributed to the abuses. ... [B]oth were more specific than in the past in identifying two under secretaries of defense, Douglas J. Feith and David S.C. Chu, and the Pentagon's general counsel, William J. Haynes, as having fallen short.

Brett M. Kavanaugh

Kavanaugh was nominated to the U.S. Court of Appeals for the District of Columbia Circuit. A People for the American Way (PFAW) report on Kavanaugh noted that throughout his legal career, he has been linked to highly partisan, Republican endeavors. Kavanaugh worked with Independent Counsel Kenneth Starr's investigation into President Clinton. He was one of the principal authors of the Starr report and drafted the impeachment referral that Starr sent to Congress.

Aside from Haynes and Kavanaugh -- and contrary to an assertion by Kondracke that Saad and Myers are the “only people who are in trouble” -- Bush nominations have generated controversy. For example, North Carolina District Court Judge Terrence W. Boyle, nominated to the 4th Circuit, has an unusually high reversal rate. A People for the American Way report on Boyle indicated that 139 of his opinions had been “reversed, vacated or otherwise adversely determined” by higher courts.

From an interview of Kondracke by host Brit Hume on the May 24 edition of Fox News's Special Report with Brit Hume:

KONDRACKE: Why would they filibuster Kavanaugh, you know, or Haynes? I mean, the only people who are in trouble are Saad and Myers. And Myers might not even be in trouble.

HUME: [Sixth Circuit nominee Richard] Griffin looks like he's going to make it.

KONDRACKE: Yeah. They are non-controversial. The really controversial ones are covered by the agreement.

[...]

KONDRACKE: You've got seven Democrats who have said, “We're not filibustering the people who the rest of the party was regarding as extreme radicals.” So you've got these other appointees whose are not labeled extreme radicals, except maybe in one case with Myers. And he's a question mark.

But certainly, they are not going to break and go filibuster these non-controversial nominees.