WASHINGTON – As part of the judicial nominee deal made in the Senate this week, the confirmation of Henry Saad (search), whose nomination to the 6th Circuit Court of Appeals has languished since 2001, has come into doubt.
Aides to Senate Minority Leader Harry Reid told FOX News that Democrats will filibuster (search) the nomination of Saad and William Myers (search) to the 9th Circuit Court. Democrats say both nominees are exempt from the "exceptional circumstances" clause in the bipartisan agreement.
Senate Majority Leader Bill Frist acknowledged on Wednesday that the two nominees remain in limbo.
"The agreement for both Myers and Saad is a little agnostic. And that's why I and our leadership did not endorse this agreement by the 14," Frist said, referring to the 14 Democratic and Republican senators who penned the deal.
Saad's detractors say he's anti-labor, but he has been endorsed by the United Auto Workers and, in the past, by the AFL-CIO. He's been lauded with praise by some high profile Democrats, and was given the American Bar Association's highest rating of "well qualified."
Saad's fate may have been sealed by Michigan Democratic Sen. Carl Levin, who saw two Democratic nominees for the 6th Circuit defeated during the Clinton years when Michigan's then-Republican senator, Spencer Abraham, refused to endorse them.
Other analysts speculate that it is payback for an e-mail in which Saad complained about Michigan Democratic Sen. Debbie Stabenow stalling his nomination.
"This is the game they play," Saad wrote to a friend. "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."
Inadvertently, Saad sent that e-mail to Stabenow herself. He quickly apologized, but the damage was done.
Reid recently suggested on the Senate floor that something untoward may be in Saad's confidential FBI file — a disclosure that angered many Republicans. Some close to Saad dismiss Reid's suggestion, speculating that Reid was referring to a complaint in the FBI file by Stabenow about Saad's e-mail. FOX News could not confirm that charge.
One Democrat who filibustered Saad confirmed that he asked to see the file, but was denied.
"I just knew there was a file, I wanted to see the file and, you know, convince myself that there was nothing in that file that ought to impede his ability to be a federal circuit court judge, which is a lifetime appointment," said Sen. Ben Nelson, D-Neb.
In 2003, when Republicans had a 51-vote Senate majority, Saad received 52 votes toward breaking a filibuster. Despite a 55-vote majority, senior Republican sources said they doubt Saad can win confirmation even if he were to survive a cloture vote to end debate.
One Republican senator told FOX News: "The president is going to lose a few, just like every other president."
Click on the video box near the top of the story to watch a report by FOX News' Megyn Kendall.