[Congressional Record Volume 148, Number 151 (Wednesday, November 20, 2002)]
[Senate]
[Pages S11711-S11712]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


[[Page S11711]]
                      CONFIRMATION OF JOHN ROGERS

  Mr. McCONNELL. Mr. President, the Senate last week confirmed 
Professor John Rogers to one of the seven vacant seats on the Sixth 
Circuit Court of Appeals. Professor Rogers' career has been marked by 
excellence and achievement, and he will be a fine addition to the Sixth 
Circuit.
  He was elected to Phi Beta Kappa at Stanford. At the University of 
Michigan law school, he was a member of the prestigious Order of the 
Coif. He has twice served in the Appellate Section of the Civil 
Division of the Department of Justice, earning a Special Commendation 
for Outstanding Service. He has been on the faculty of the University 
of Kentucky College of Law since 1978, where he is the Thomas P. Lewis 
Professor of Law. Professor Rogers has also twice served as a Fulbright 
Professor in China. Finally, it is worth noting that Professor Rogers 
has dedicated a good part of his life to the service of his country as 
a member of the field artillery in the United States Army Reserves. He 
is retired with the rank of Lieutenant Colonel.
  Professor Rogers, in addition to having the enthusiastic support of 
both Senator Bunning and myself, has earned a unanimous rating of 
qualified by the American Bar Association. I am confident that he will 
make the citizens of the Commonwealth proud, and that he will provide 
badly-needed relief to the woefully understaffed Sixth Circuit Court of 
Appeals.
  As I have said repeatedly, I appreciate the fair manner in which 
Chairman Leahy treated Kentucky judicial nominees, particularly 
nominees to the district courts in Kentucky. However, some of his 
statements on the floor Monday evidence a serious misunderstanding of 
the genesis of the Sixth Circuit vacancy crisis and of Professor 
Rogers' judicial record and philosophy.
  As many people know, the Sixth Circuit has been in dire straits, and 
although some of my Democrat colleagues have tried mightily to do so, 
the blame for this sorry situation cannot be laid at the feet of a 
Republican-controlled Senate.
  At the beginning of this year, half of the sixteen seats on the Sixth 
Circuit were vacant. But contrary to the assertions of my friend from 
Vermont, half of those vacancies arose in the first year of President 
Bush's presidency. Judges Gilbert F. Merritt, Alan E. Norris, Richard 
F. Suhrheinrich, and Eugene F. Siler all took senior status in 2001--
after President Bush came into office.
  With respect to another vacancy on the Sixth Circuit, my friend from 
Vermont notes that the Senate did not act on President Clinton's 
nomination of Mr. Kent Markus. Mr. Markus was nominated to fill the 
vacancy that arose from Judge David A. Nelson taking senior status. The 
Senate was unable to act on this vacancy, however, because President 
Clinton did not nominate Mr. Markus until his final year in office, 
when only nine months remained until the presidential election.
  As to a sixth vacancy, that created by the retirement of Judge James 
L. Ryan, President Clinton did not even submit a nomination.
  As to the remaining two vacancies, it is my understanding that the 
Republican Senate could not confirm the nominees to these seats, Ms. 
Helene White and Ms. Katherine McCree Lewis, because the Clinton 
Administration did not properly consult on their nominations. As a 
result, these nominations faced home-state opposition that prevented 
the Senate from moving them forward.
  I ask unanimous consent that an article from the Wall Street Journal 
on the subject of these nominations be printed in the Record at the end 
of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered. (See 
exhibit I)
  Mr. McCONNELL. Mr. President, the situation with Ms. White and Ms. 
Lewis is obviously quite different from the situation of Mr. Jeffrey 
Sutton and Justice Deborah Cook, whom President Bush has nominated to 
fill two of the six remaining vacancies on the Sixth Circuit. Both Mr. 
Sutton and Justice Cook have strong home-state support. Furthermore, 
they are part of the President's first group of judicial nominees that 
he submitted to the Senate in May of last year. Nevertheless, neither 
has been able to obtain a hearing. I am confident that in the next 
Congress the Judiciary Committee will promptly act on their 
nominations.
  Far from treating President Clinton poorly with respect to his 
judicial nominees, the Republican Senate treated him quite well, 
particularly on nominations to the Sixth Circuit. President Clinton got 
three hundred and seventy-seven of his judicial nominees confirmed, 
only five shy of President Reagan's all-time record. This is quite 
impressive in and of itself. It is even more impressive when one 
considers that President Clinton got these nominees confirmed when 
Republicans controlled the Senate for seventy-five percent of his term. 
By contrast, President Reagan got his judicial nominations confirmed 
when his own party controlled the Senate for seventy-five percent of 
his term. Thus, a Republican Senate treated Presidents Reagan and 
Clinton equally well.
  As part of his near-record total, President Clinton got five Sixth 
Circuit nominees confirmed. Judges Martha Craig Daughtery, R. Guy Cole, 
Jr., Karen Nelson Moore, Ronald Lee Gilman, and Eric L. Clay were all 
Clinton nominees who were confirmed to the Sixth Circuit. This is also 
a fairly impressive statistic, particularly when compared to President 
Bush, who has only gotten two of his Sixth Circuit nominees confirmed, 
including Professor Rogers. But President Clinton's Sixth Circuit 
accomplishment is even more impressive when one considers that a 
Republican Senate confirmed four out of the five, or eighty percent, of 
those nominations. Only Judge Daughtery was confirmed by a Democrat 
Senate.
  Indeed, because the Republican Senate confirmed so many nominees to 
the Sixth Circuit, Democrat appointees outnumbered Republican 
appointees by a ratio of three to one at the beginning of this year: 
there were six Democrat-appointed judges on the Sixth Circuit and only 
two Republican-appointed judges. President Clinton might have had even 
more judicial nominees confirmed to the Sixth Circuit if his 
administration had consulted properly on the White and Lewis 
nominations.
  With respect to the Rogers' nomination, Professor Rogers has not been 
a judicial activist, as the Chairman claims. The law review article on 
which my friend from Vermont relies for this sweeping assertion was a 
theoretical piece discussing an esoteric subject that scholars have 
debated since the great Learned Hand. It was Professor Rogers' lone 
foray into the topic.
  Far from arguing that inferior courts should somehow try to overrule 
higher court precedent--if that were even possible--Professor Rogers 
argues just the opposite: that lower courts have a duty to follow all 
precedent, including precedents with which they disagree. My friend 
from Vermont may want to read page 185 of the article where Professor 
Rogers writes that our legal system ``would not work well if lower 
courts persisted in their own sincere legal analyses regardless of the 
decisions of higher courts.'' Professor Rogers goes on to write that it 
``follows that judges may, indeed should, follow the law as appellate 
courts determine it, in order to apply--per their oaths--the law of the 
system that set up their courts.''
  Over the course of his long and distinguished career, Professor 
Rogers has consistently demonstrated a strong and abiding fidelity to 
precedent. A judicial activist, by contrast, would be a label more 
appropriately applied to someone like Clinton appointee William 
Sessions, a district court judge from Vermont, who recently declared 
that the federal death penalty statute is unconstitutional in all its 
applications, which would preclude using it against mass murderers and 
serial killers. Or it could apply to Clinton appointee Jed Rakoff, a 
district court judge who also ruled the federal death penalty 
unconstitutional, which prompted even the Washington Post to complain 
about such judicial activism in a piece entitled ``Right Answer, Wrong 
Branch.''
  Or that label might apply to Clinton appointee Shira Scheindlin. 
According to the Wall Street Journal, in an article entitled ``Osama's 
Favorite Judge,'' a Jordanian named Osama Awadallah knew two of the 9/
11 hijackers and met with one at least forty times. His name

[[Page S11712]]

was found in the car parked at Dulles Airport by one of the hijackers 
of American Airlines Flight 77. Photos of his better-known namesake--
Osama bin Laden--were found in Mr. Awadallah's apartment. Under the 
law, a material witness may be detained if he has relevant information 
and is a flight risk.
  Federal prosecutors thought that Osama Awadallah easily met both 
parts of that test and therefore detained him. While detained Mr. 
Awadallah was indicted for perjury. But Judge Scheindlin dismissed the 
perjury charges and released Mr. Awadallah. She reasoned that the 
convening of a federal grand jury investigating a crime was not a 
``criminal proceeding'' and therefore it was unconstitutional to detain 
Mr. Awadallah. This was quite a surprise to federal prosecutors who for 
decades had used the material witness law in the context of grand jury 
proceedings for everyone from mobsters to mass murderer Timothy 
McVeigh.
  Or that label might apply to Clinton appointees Tashima, Hawkins, 
Paez, and Berzon, all of whom discovered in the Constitution the right 
of prisoners serving life sentences to procreate via artificial 
insemination. Fortunately, there were enough judges on the Ninth 
Circuit to conclude that the Constitution does not include a ``right to 
procreate from prison via FedEx.''
  There are other Clinton nominees to whom one could apply the label 
``judicial activist.'' That label cannot, however, fairly be applied to 
Professor Rogers.
  The Chairman also implies that Professor Rogers is an activist 
because of his views on the Supreme Court's opinion in Roe v. Wade. But 
Professor Rogers has never ruled on that subject. In fact, he has never 
even written on it, except for his one assignment as a line attorney in 
the Justice Department in helping draft an amicus brief. If daring to 
note some of the flawed analytical underpinnings of Roe makes one a 
judicial activist, then Justice Ruth Bader Ginsburg must be one. In a 
1985 article, she noted that ``Roe sparked public opposition and 
academic criticism, in part, I believe, because the Court ventured too 
far in the change it ordered and presented an incomplete justification 
for its action.'' She also recognized that in Roe ``heavy-handed 
judicial intervention was difficult to justify and appears to have 
provoked, not resolved, conflict.'' Other liberal scholars have also 
recognized serious flaws in Roe's analysis.
  In conclusion, Professor Rogers possesses the intellect, integrity, 
and commitment to public service that will make him a fine addition to 
the Sixth Circuit. His confirmation will provide some badly-needed 
relief to my constituents and other citizens in the Sixth Circuit, and 
I am confident that he will make Kentucky and his country proud. And 
while I believe my friend from Vermont misapprehends the cause of the 
vacancy crisis on the Sixth Circuit and Professor Rogers' judicial 
philosophy and record, I appreciate him moving the Rogers' nomination 
and other Kentucky nominees through the process. He correctly notes 
that there are now no judicial vacancies in Kentucky, and I thank him 
again for helping the Commonwealth in that respect.

                               Exhibit 1

              [From the Wall Street Journal, Dec. 4, 2001]

                           Judges and Grudges


              Michigan's Democratic senators seek payback

                          (By Thomas J. Bray)

       On Thursday, the Sixth U.S. Circuit Court of Appeals, which 
     handles federal appeals from Kentucky, Michigan, Ohio and 
     Tennessee, will meet en banc to hear oral arguments on 
     whether the University of Michigan's use of racial 
     preferences in administrations is constitutional. Such a 
     hearing, in which all of the court's active judges, rather 
     than the usual three-judge panel, hear the case, is highly 
     unusual.
       But then the number of judges on the Sixth Circuit is bit 
     unusual, too. Though there are normally 16 active judges 
     assigned to the appeals court, only nine of the seats are 
     currently filled. Moreover, the number will fall to eight at 
     the end of the year when one judge retires.
       Nominations to fill seats in the Sixth Circuit have are 
     being stymied by bitter partisan wangling in the Senate. And 
     there appears to be little prospect of breaking the deadlock. 
     Michigan's two Democratic senators, Carl Levin and Deborah 
     Stabenow, have put a hold on three of President Bush's 
     nominees from that state. (Mr. Bush hasn't yet named a 
     candidate for a fourth seat traditionally held by a 
     Michiganian.) Judiciary Committee Chairman Patrick Leahy has 
     refused even to hold hearings on the nominations.
       Echoing their party's rationale for foot-dragging on 
     judicial nominations from all across the country, Sens. Levin 
     and Stabenow complain that when Republicans controlled the 
     Judiciary Committee in the warning days of the Clinton 
     administration, they arbitrarily refused to act on the 
     nominations of state appellate judge Helen White and Detroit 
     lawyer Kathleen McCree Lewis. ``This was despite the fact 
     that no concerns were raised about either woman's 
     qualifications,'' the two senators wrote in a letter last 
     weekend to the Detroit News.
       That leaves the implication that the White and Lewis 
     nominations were stalled because of sheer partisanship, thus 
     justifying retaliation now that the Senate is in Democratic 
     hands. But the story is a bit more complicated.
       Helene White happens to be the wife of Carl Legion's cousin 
     Charles Levin, a former member of the Michigan Supreme Court. 
     In 1996, Judge White was threatening to run as an independent 
     for the state Supreme Court. This horrified Michigan 
     Democrats, who feared that she might draw off a big chunk of 
     the liberal vote. The White House, according to state 
     political sources, was persuaded to forestall that 
     possibility by nominating her for a seat on the Sixth 
     Circuit. (The Democratic candidate went on the lose anyway.)
       But her nomination outraged then-Sen. Spencer Abraham, a 
     Michigan Republican who is now secretary of energy. Mr. 
     Abraham traded his help for getting three Michigan nominees 
     to the federal courts approved by the GOP Senate in exchange 
     for Clinton-judge pickers holding off on further nominations.
       When the White House was ahead with the White nomination 
     anyway, sen. Abraham made no secret of his feeling that he 
     had been double-crossed. He then placed his hold on the White 
     nomination and later the Lewis nomination.
       All of this came well into the Clinton tenure. Newly 
     elected presidents, including Mr. Clinton, have generally 
     received speedy accommodation for their initial nominees. 
     Blocking nominees so early makes it appear the Democrats are 
     motivated by little more than partisanship stemming from 
     disappointment at the outcome of the 2000 election and the 
     desire to impose an ideological litmus test on judicial 
     nominees.
       Sen. Charles Schumer of New York, a member of the Judiciary 
     Committee, let the cat out of the bag shortly after the 
     Democrats took over the Senate. The committee, he announced, 
     would be justified in opposing nominees ``whose views fall 
     outside the mainstream''--in other words, anybody with whom 
     he and his Democratic colleagues disagreed.
       The three blocked Bush nominees to the Sixth Circuit 
     include a highly qualified federal district judged from 
     western Michigan, a female state trial judge and a state 
     appeals-court judge of Arab descent. At a time when Democrats 
     are loudly complaining about insensitivity toward Arab and 
     Muslim visa-holders, the last nomination might seem 
     particularly timely. A federal district judge in Detroit is 
     now hearing charges against three Arab aliens charged with 
     visa violations who authorities say may have connections to 
     al Qaeda.
       There currently are 110 vacancies among the nation's 862 
     district and appeals courts judgeships. The gap has so far 
     been filled by semiretired senior judges, through they aren't 
     allowed to join in en banc court proceedings.
       An indignant Sen. Leahy is hauling Attorney General John 
     Ashcroft before his committee this week to answer questions 
     about the constitutionality of his investigative techniques 
     as well as the use of military commissions to conduct speedy 
     trials of captured foreign terrorists. If Mr. Leahy and his 
     colleagues are so keen on having the regular courts do this 
     job, maybe they should be asked why they are still sitting on 
     so many of the president's nominations.

                          ____________________