[Congressional Record Volume 149, Number 105 (Wednesday, July 16, 2003)]
[Senate]
[Pages S9433-S9438]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STALLED NOMINATIONS FOR THE SIXTH CIRCUIT
Mr. FRIST. Mr. President, I rise this morning to address a very
specific situation--a dire situation--that exists in the administration
of justice for the people of Tennessee, Kentucky, Ohio, and Michigan,
the States that make up the Sixth Circuit Court of Appeals.
I am joined this morning by other Senators from the Sixth Circuit
and, most notably, we are joined on the Senate floor by many Members of
the House of Representatives, representing the four States of the Sixth
Circuit.
This morning, we will be meeting with Michigan's attorney general,
Mike Cox, and several other Michigan leaders. They flew down today to
make their case in the Senate, encouraging us to do our job and move
forward with the stalled Michigan nominations to the Sixth Circuit
Court of Appeals. They will be presenting the Senate leadership with a
petition of thousands of Michigan citizens asking the Senate to end
this delay on the so-called Michigan four.
This petition corresponds with a concurrent resolution which has been
introduced in the Michigan Legislature, also asking the Senate to end
the almost 2-year delay on the Michigan nominations.
The people and leaders of Michigan are not just speaking for
themselves; they speak for the people from all of the States concerned
and affected by this inexcusable delay. That includes the people of
Tennessee, Kentucky, as well as Ohio.
That is why last week I took the rare, but not unprecedented, action
of vowing for discharge of these four stalled nominations from the
Judiciary Committee, because the delay of these nominations affects
more than the State of Michigan, and the entire Sixth Circuit
congressional delegation does have an interest on behalf of the people
of the States and districts we represent.
[[Page S9434]]
In response to my discharge motion, my colleague, the senior Senator
from Illinois, objected on behalf of the two Senators from Michigan on
the basis that the stalled Michigan nominations had not had a hearing.
I thought at the time it was an odd objection given that the Senators
from Michigan are the ones who are obstructing such hearings from even
being held. Nevertheless, I respectfully considered the objection and
studied the record of the Michigan nominations. This morning, I have
sent a letter to Senator Hatch, chairman of the Judiciary Committee,
along with Senator McConnell, who also signed and wrote this letter
with me, asking them to hold hearings on these nominations as soon as
possible.
Mr. President, I ask unanimous consent that this letter be printed in
the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Congress of the United States,
Washington, DC, July 16, 2003.
Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Dear Chairman Hatch: As leaders of the majority and
senators who represent two of the four states that comprise
the Sixth Circuit, we are requesting that you hold hearings
on the nominations of Judges Henry W. Saad, Susan B. Neilson,
David W. McKeague, and Richard A. Griffin to the U.S. Court
of Appeals for the Sixth Circuit.
On July 7, 2003, the Majority Leader filed resolutions to
discharge the Judiciary Committee from consideration of these
nominees. These measures would allow the full Senate to
consider their nominations, three of which have been pending
for nearly two years (the fourth has been pending more than
one year).
We believe that the discharge resolutions are necessary
because the Michigan senators have returned negative blue
slips in an effort to prevent you from holding hearings on
these nominees. Our understanding, however, is that the
Michigan senators' objection to these nominees is based not
on any substantive concerns about their qualifications,
integrity, or temperament. Indeed, these four nominees are
held in the highest regard and enjoy solid reputations. Nor
is it based on a failure of the White House to properly
consult with the Michigan senators. In fact, it appears that
the Administration has been extremely solicitous of their
views, having engaged in extensive consultation, as that term
is properly understood.
Rather, based upon our review of the record of consultation
and correspondence, it appears that the Michigan Senators
object to consideration of these nominees for purposes
unrelated to their personal qualifications. Simply put, they
believe that two Clinton nominees from Michigan who were not
confirmed should be renominated by President Bush. Because
the White House has not taken the extraordinary step of
renominating these two Clinton nominees, the Michigan
Senators have decided to block all four of Michigan's circuit
court nominees (and both of its district court nominees as
well).
This is not a valid reason to hold the entire Sixth Circuit
hostage and inflict damage and delay on our constitutes. This
situation is unacceptable and simply cannot continue. The
Michigan senators should not be able to prevent the entire
Senate from acting on four outstanding nominees who would
fill judicial emergencies on an appellate court that is
operating with fully one fourth of its seats vacant.
There are many others, including numerous Michigan public
officials, who share this view. Nine members of the Michigan
congressional delegation wrote you on February 26, 2003,
asking you to provide hearings for the Sixth Circuit nominees
from Michigan as soon as reasonably practical. On July 3,
2003, the Michigan Senate introduced a resolution calling for
the United States Senate and Michigan's U.S. Senators to act
to begin the confirmation hearings on Michigan's Sixth
Circuit nominees.
In response to the filing last week of the resolution to
discharge the Judiciary Committee from consideration of Judge
McKeague's nomination, Senator Durbin stated, ``. . . [T]his
nomination for the Sixth Circuit, and the others that will be
made by the majority leader, have not had the benefit of any
hearing before the Senate Judiciary Committee. I believe that
[a] hearing should take place before a lifetime appointment
is given to any person to the Circuit Court.'' We
wholeheartedly agree that the Michigan nominees to the Sixth
Circuit deserve hearings, and accordingly request that you
schedule hearings for Judges Saad, Neilson, McKeague, and
Griffin as soon as possible.
On behalf of our constituents, we would appreciate your
immediate attention to this most urgent matter.
Sincerely,
William Frist,
U.S. Senate Majority Leader.
Mitch McConnell,
U.S. Senate Majority Whip.
Mr. FRIST. Mr. President, I also ask unanimous consent to have
printed in the Record two letters from White House Counsel Alberto
Gonzales outlining the history of these nominations.
There being no objection, the material was sordered to be printed in
the Record, as follows:
The White House,
Washington, March 28, 2003.
Hon. Orrin Hatch,
Chairman, Senate Judiciary Committee,
U.S. Senate, Washington, DC.
Dear Chairman Hatch: Thank you for your letter of March 25,
advising the President of a letter you recently received from
Senator Levin and Senator Stabenow. As you note, Senators
Levin and Stabenow have returned blue slips objecting to all
five judicial nominees from Michigan pending before the
Committee. The Michigan Senators' letter further suggests
that the White House did not engage in adequate consultation
with them regarding these nominees. You have asked me to
describe the nature and extent of consultation between the
White House and the Michigan Senators regarding Richard
Griffin, David McKeague, Susan Bieke Neilson, Henry Saad and
Thomas Ludington. We are pleased to have the opportunity to
explain why we believe there has been appropriate
consultation.
Before turning to a chronological review of the record, we
believe a general comment is in order. Senators Levin and
Stabenow insisted from the outset that President Bush should
renominate to the Sixth Circuit two nominees of President
Clinton--Helene White and Kathleen McCree Lewis--who had not
received hearings or votes. The Senators argued that
``elementary fairness . . . necessitates that they be
renominated, that hearings be held, and that they be voted up
or down by the Senate Judiciary Committee.'' See Levin-
Stabenow Letter to President Bush (April 3, 2001). In
response, we informed the Senators that we were in fact
considering Judge White and Ms. McCree Lewis, along with
numerous other candidates, for the Sixth Circuit, but that
the President would not commit to renominating them for those
seats. We explained that it is extraordinarily rare for a
President to nominate for the federal bench an individual
previously nominated by his predecessor, especially when the
predecessor is from another political party; that President
Bush was not responsible for the failure of Judge White and
Ms. McCree Lewis to attain confirmation; and that numerous
individuals appointed by President George H.W. Bush to the
federal courts of appeals saw their nominations lapse without
Senate action at the end of 1992, and did not have their
names resubmitted by President Clinton. As we summarized,
``President Bush is entitled to make his own appointments for
these vacancies, and he may well prefer candidates other than
those previously chosen by President Clinton.'' See Gonzales
Letter to Senators Levin and Stabenow (April 10, 2001).
Following this initial exchange, in which the White House
made its position very clear, we moved forward with the
process of evaluating candidates for the judicial vacancies
in Michigan--including Judge White and Ms. McCree Lewis, who
we interviewed--and recommending nominees to the President.
Throughout this process, we repeatedly consulted with the
Michigan Senators, seeking their input on candidates time and
time again, almost literally until the eve of their
nominations. At no point did either Senator Levin or Senator
Stabenow ever articulate any specific objections to any of
the five nominees. Instead, the Michigan Senators
consistently responded to our consultations by (1) continuing
to ask that President Bush ``address'' the White and McCree
Lewis situations by renominating them, and (2) refusing to
provide feedback on our proposed candidates unless and
until we gave in to that request.
Specifically, our records show that, prior to the
nominations of the five individuals in question, the White
House engaged in the following noteworthy consultations with
the Michigan Senators.
April 3, 2001. The Michigan Senators write to the President
to announce their position: ``[E]lementary fairness to [Judge
White and Ms. McCree Lewis] . . . necessitates that they be
renominated, that hearings be held, and that they be voted up
or down by the Senate Judiciary committee''; and
``[n]ominating others in their stead would not only be
inconsistent with your stated goal of bipartisanship, it
would compound the difficult situation we are now in relative
to filling the Michigan judicial vacancies on the Sixth
Circuit.''
April 10, 2001. I respond in writing as described above--
stating that we are considering Judge White and Ms. McCree
Lewis, but that President Bush is entitled to make his own
appointments for the Michigan vacancies.
May 17, 2001. At a meeting in my office, I provide the
Senators with the names of individuals being considered for
the Sixth Circuit (including Judges Saad, McKeague, and
Griffin) and for the vacancy on the U.S. District Court for
the Eastern District of Michigan (including Thomas
Ludington). I invite the Senators to provide their feedback
on those individuals. Senator Levin, however, states that he
will not provide any reactions until ``the larger issue'' is
settled.
May 17, 2001. Following up on my meeting with the Senators,
Associate Counsel Brad Berenson calls the Chiefs of Staff of
Senators Levin and Stabenow, again providing the
[[Page S9435]]
names of the candidates and soliciting the Senators'
reaction.
May 23, 2001. Mr. Berenson consults again with Senator
Levin's Chief of Staff regarding Judges Griffin, McKeague and
Sadd--making clear that no nominations are definite, and
again asking for reactions or feedback from the Senator. Mr.
Berenson also delivers the same message and invitation by
voice mail to Senator Stabenow's Chief of Staff.
June 7, 2001. Mr Berenson again calls Senator Stabenow's
Chief of Staff seeking the Senator's reaction to the
potential judicial nominees. The Chief of Staff reports that
Senator Stabenow does not know any of the individuals in
question and again urges that no action should be taken on
them until the White/McCree Lewis situation is addressed.
June 15, 2001. Mr. Berenson again calls Senator Stabenow's
chief of Staff--once again seeking the Senator's reaction to
the potential judicial nominees, and notifying the Senator
that Susan Bieke Neilson is under consideration for the Sixth
Circuit. Mr. Berenson also calls Senator Levin's Chief of
Staff to deliver the same message, but is told that the
Chief of Staff can not talk until the following Monday.
June 21, 2001. After leaving several telephone messages,
Mr. Berenson succeeds in contacting Senator Levin's Chief of
Staff. Again, he seeks the Senator's reaction to the
potential judicial nominees we had identified on May 17; he
also gives notice that Susan Bieke Neilson is under
consideration for the Sixth Circuit.
July 9, 2001. Mr. Berenson speaks by phone with Senator
Levin's Chief of Staff regarding Judge Neilson. Mr. Berenson
leaves a voice mail message about Judge Neilson for Senator
Stabenow's Chief of Staff.
August 8, 2001. Mr. Berenson places phone calls to both
Senators' Chiefs of Staff. Both are on vacation, so Mr.
Berenson leaves messages regarding Judge Ludington.
August 10, 2001. Senator Levin's Chief of Staff writes to
Mr. Berenson reiterating Senator Levin's original position.
August 14, 2001. Mr. Berenson responds to Senator Levin's
Chief of Staff, explaining that ``although we gave careful
consideration to the matter, including interviews of both
women, the President does not intend to nominate both these
women to the Sixth Circuit.'' Mr. Berenson's letter further
notes that ``[we] have . . . continued to keep the Senator
fully informed at every stage of our deliberations, providing
the names of individuals the President is considering for
appointment and repeatedly soliciting the Senator's views,''
and advises that ``we would prefer to have the Senator's
input before the President makes nominations.''
August 17, 2001. I send a letter to then-Chairman Leahy
(with copies to the Michigan Senators as well as to you),
once again clearly setting out the White House's position. I
write that ``I have met with Senators Levin and Stabenow and
have listened carefully to their concerns regarding the
history of nominations from Michigan to the Sixth Circuit.
Although I understand their desire to have the President
renominate two of President Clinton's candidates for the
Court of Appeals . . . we believe it would be unfair to
expect the President to do so. The net result of our
discussions is an apparent standoff in which the two Michigan
Senators are attempting (inappropriately, in my view) to use
the threat of negative blue slips against President Bush's
Michigan circuit nominees to compel the President to
renominate Clinton nominees based upon grievances in which
president Bush played no part.'' I also reiterate that ``[w]e
remain committed to consulting closely with home-state
Senators to identify judicial candidates the President may
nominate with the support of the Senators; however,
meaningful, good faith consultation by the Senators cannot,
in my judgment, include a demand that President Bush select
as nominees those individuals previously selected by the
prior Administration.''
August 22, 2001. Senator Levin's Chief of Staff writes to
Mr. Berenson, proposing a bipartisan commission for judicial
nominations in Michigan.
August 23, 2001. Mr. Berenson responds, explaining that the
White House is not willing to consider a commission in
Michigan at this time. Mr. Berenson elaborates: ``Commissions
exist or are under consideration in only two or three states
in which history or other special circumstances clearly
justify such an unorthodox mechanism. None of these
circumstances exists in Michigan.''
October 9, 2001. I meet with the Michigan Senators at
Senator Levin's office to discuss potential solutions to the
Sixth Circuit impasse.
October 31, 2001. I speak with Senator Levin to explain why
the Michigan Senators' commission proposal is not acceptable,
and to inform the Senator of the president's intent to make
nominations to the Sixth Circuit seats shortly.
November 1, 2001. Senators Levin and Stabenow write to urge
me ``to reconsider [their] proposal to jointly establish a
bipartisan judicial nominating commission for the existing
Michigan vacancies on the Sixth Circuit Court of Appeals.''
Again, they do not provide any comments on Judges Griffin,
McKeague, Neilson, Saad or Ludington--and they indicate that
``we could not, in good conscience, return blue slips on
Sixth Circuit nominees until the unfair treatment of the
nominations of [Judge White and Ms. McCree Lewis] is
addressed.''
November 2, 2001. I respond to the Michigan Senators,
respectfully declining to reconsider our decision not to
establish a judicial nominating commission, and reiterating
that we had proposed an appropriate solution to the Michigan
situation. My letter also gives fair warning that ``the
President will soon make nominations to all of the existing
federal judicial vacancies in Michigan,'' and invites the
Michigan Senators to reconsider their position.
Following these extensive consultations by the White House,
the President nominated Judges McKeague, Saad and Neilson on
November 8, 2001.
Still, our consultations as to the remaining vacancies
continued even after this point. I met with the Michigan
Senators on December 19, 2001, and again on February 7, 2002,
to discuss solutions to the Michigan. situation, and I called
them on June 20 and 24, 2002. Seeing no prospect of
resolution, the President nominated Judge Griffin to the
Sixth Circuit on June 26, 2002. Judge Ludington was nominated
later that year, on September 12.
In short, we engaged in repeated pre-nomination
consultations with the Michigan Senators regarding these five
nominees, making every reasonable effort to get the Senators'
feedback. We interviewed the candidates suggested by the
Senators--Judge White and Ms. McCree Lewis. And we proposed
our own reasonable solution to the matter. Notwithstanding
these extensive efforts by the White House, the Michigan
Senators steadfastly refused to provide feedback on the
nominees, instead insisting that the President should first
agree to nominate President Clinton's candidates and/or to
turn the process over to a commission. After several months,
with no sign of progress, and having received no specific
objections to any of the individuals in question, the
President proceeded with his nominations, to address the
acknowledged judicial emergencies on the Sixth Circuit. These
emergencies continue to this day, and affect not only the
constituents of Senators Levin and Stabenow, but also the
citizens of Kentucky, Ohio and Tennessee.
I believe that any reasonable observer would agree that the
record described above demonstrates that the White House
engaged in appropriate consultations with respect to the five
Michigan judicial nominees.
I trust that this letter provides the information you need
regarding our extensive consultation with the Michigan
Senators. However, I would be pleased to provide additional
details if necessary.
Sincerely,
Alberto R. Gonzales,
Counsel to the President.
____
The White House,
Washington, April 2, 2003.
Hon. Carl Levin,
U.S. Senate,
Washington, DC.
Hon. Debbie A. Stabenow,
U.S. Senate,
Washington, DC.
Dear Senators Levin and Stabenow: I respectfully write with
regard to your March 19 joint letter to Chairman Hatch, which
accompanied your return of blue slips indicating your
opposition to a hearing and vote for five pending Michigan
nominees for federal judicial seats. Your letter explains
that you are objecting to these Michigan nominees--and will
continue to object to future Michigan nominees--in order to
protest the fact that two of President Clinton's judicial
nominees from Michigan did not receive hearings.
Although you have returned negative blue slips for all of
these nominations, you do not indicate any opposition based
upon qualifications to any of the five individuals in
question. Nor did you express any such specific opposition
during our pre-nomination consultations with your offices
regarding these individuals. (This consultation history is
described more fully in the attached response to any inquiry
from Chairman Hatch.) In our judgment, all five nominees are
indeed well qualified to serve on the federal bench, and
deserve prompt hearings and votes. I will briefly review
their qualifications below, before turning to your complaints
regarding President Clinton's nominees and, finally,
addressing your blue slips.
i. the nominees
David McKeague, Susan Bieke Neilson, Henry Saad, Richard
Griffin and Thomas Ludington are well qualified for the
judicial seats for which they have been nominated.
Judge McKeague has served on the U.S. District Court for
the Western District of Michigan since 1991, when he was
unanimously confirmed by the then-Democrat-controlled Senate.
During his tenure as a district judge, he has on seven
occasions been designated to sit on a panel of the Sixth
Circuit. Chief Justice Rehnquist appointed Judge McKeague to
serve on the Judicial Conference's Committee on Defender
Services, where Judge McKeague chairs the funding
subcommittee. The Chief Justice also appointed Judge McKeague
to the District Judges Education Committee of the Federal
Judicial Center, which Judge McKeague chairs. The American
Bar Association (``ABA'') has given Judge McKeague, a ``Well
Qualified'' rating for the Sixth Circuit.
Judge Neilson has served on the 3rd Judicial Circuit Court
of Michigan since 1991. She has written numerous articles and
was co-editor and author of Michigan Civil Procedure, a two-
volume treatise on all areas of Michigan civil practice. This
treatise was selected by the Michigan Judicial Institute for
purchase on behalf of every trial judge in the
[[Page S9436]]
State of Michigan and received the ``Plain English Award''
from the State Bar of Michigan. The ABA has unanimously rated
Judge Neilson ``Well-Qualified'' for the Sixth Circuit.
Judge Saad has served on the Michigan Court of Appeals
since 1994. During his 1996 retention election, he received
broad bipartisan support, including endorsements from the
Michigan Chamber of Commerce and the United Auto Workers.
Judge Saad is also active in the community. He has served as
President of the Wayne State University Law School Alumni
Association, Chairman of the Board of the Oakland Community
College Foundation, and as a Board Member on the National
Conference of Christians and Jews. In 1995, he received the
Arab-American and Chaldean Council Civic and Humanitarian
Award for Outstanding Dedication to Serving the Community
with Compassion and Understanding. The ABA has given Judge
Saad a ``Qualified'' rating. It also bears noting that Judge
Saad was nominated to the Eastern District of Michigan by
President George H.W. Bush a decade ago, but did not receive
a hearing.
Judge Griffin has served on the Michigan Court of Appeals
since 1989. He has served the bench and bar in a number of
volunteer capacities. He is a former member of the federal
judicial selection committee for the Western District of
Michigan, and currently serves as Chairman of the Quality
Review Committee for the Michigan Court of Appeals. The ABA
has rated Judge Griffin ``Well Qualified'' to serve on the
Sixth Circuit.
In sum, all four of the President's Sixth Circuit nominees
from Michigan have extensive experience on the state or
federal benches; all are active in their communities and in
the bar; all have extensive support in Michigan; and all have
received Well Qualified or Qualified ratings from the ABA. We
respectfully submit that by any traditional standard, Judges
McKeague, Neilson, Saad and Griffin are superbly qualified
candidates for the vacant seats on the Sixth Circuit--seats
that have been designated ``judicial emergencies'' by the
Judicial Conference.
Thomas Ludington is likewise fully qualified for the
district court. He has considerable experience on the state
bench--having served as Chief Judge of the 42nd Circuit Court
in Michigan since 1995--and enjoys wide support within the
State. And he too has received a unanimous ``Well Qualified''
rating from the ABA.
II. the basis of your objections
In explaining your negative blue slips, you note that two
of President Clinton's Michigan nominees to the Sixth
Circuit, Judge Helene White and Kathleen McCree Lewis, did
not receive hearings or votes.
We understand your position. President Bush has explained
that too many nominees of both President Bill Clinton and
President George H.W. Bush did not receive timely hearings
and votes. For example, two of President George H.W. Bush's
Sixth Circuit nominees--John Smietanka and Justin Wilson--and
his nominee to the Eastern District of Michigan, Judge Saad,
did not receive hearings or votes in the then-Democrat-
controlled Senate a decade ago.
President Bush has called on both parties to move on from
the cycle of blame and retribution that has plagued the
Senate for more than a decade. Since the 2000 campaign, the
President has emphasized that every judicial nominee should
receive a committee hearing and up or down floor vote within
a reasonable time, no matter who is President or which
party controls the Senate. On October 30, 2002, after
nearly two additional years of Senate delays, the
President advanced a plan involving all three Branches
that would require, among other steps, the Senate to vote
on nominees within 180 days of nomination. The plan would
ensure a generous period of time for all Senators to
gather information and have their voices heard and votes
counted. Whether the nominee is John Smietanka or Helene
White or Susan Bieke Neilson, whether the President is
President Clinton or President Bush, whether the Senate is
Republican- or Democrat-controlled, the President believes
that the procedures for fair and timely Senate
consideration and votes on judicial nominations should be
the same.
iii. the significance of the blue slips
Against this backdrop, let me turn to your blue slips.
It has been my understanding that the blue slip is not a
veto, but rather a device to ensure adequate pre-nomination
consultation with home-state Senators, such as has occurred
in the cases of these five nominees. We understand this to
have been the consistent Senate policy for at least the last
25 years--during the Chairmanships of Senators Kennedy,
Thurmond, Biden and Hatch. And in recent weeks, several other
Democratic Senators (including former Chairman Leahy) have
argued that Jorge Rangel and Enrique Moreno, nominees of
President Clinton to the Fifth Circuit, should have received
hearings and votes notwithstanding what the Committee deemed
to be inadequate consultation with home-state Senators--
thereby implicitly embracing the view that home-State
Senators should not be allowed to veto a nominee.
We agree strongly with the bipartisan policy maintained by
Senators Kennedy, Thurmond, Biden, and Hatch as Chairs of the
Judiciary Committee. We respectfully agree that the tradition
of consultation does not and should not entail a veto for
home-state Senators, particularly a veto wielded for
ideological or political purposes. Rather, the intention of
the Constitution and the tradition of the Senate require, in
our judgment, that the full Senate hold on up or down vote on
each judicial nominee. If the objections of home-state
Senators to a nominee are persuasive, those objections either
will deter the President from submitting the nomination in
the first instance or, alternatively, will convince a
majority of the Senate that the nomination should be
rejected. As Senator Kennedy stated in 1981, however, the
Senate has not allowed and should not allow ``individual
Senators [to] ban, prohibit, or bar'' consideration of a
nominee.
Once again I respectfully suggest that all Senators should
have their voices heard and their votes counted on the
nominations of Judges McKeague, Neilson, Saad, Griffin, and
Ludington--five individuals well qualified to serve on the
federal bench.
I remain hopeful that we can work together to fill these
judicial emergencies and I remain ready to meet to explore
options.
Sincerely,
Alberto R. Gonzales,
Counsel to the President.
Mr. FRIST. After looking at the record, I have reached the conclusion
that the objection to these nominees having hearings is based not on
any substantive concerns about their qualifications, or their
temperament, or about their integrity. Indeed, these four nominees are
held in the highest regard and enjoy solid reputations. Nor is it based
on a failure of the White House to properly consult with the Michigan
Senators. In fact, it appears that the administration has been
extremely solicitous of their views, having engaged in extensive and
good-faith consultation, as that term is properly understood.
Rather, based upon review of the record of consultation and
correspondence, it appears that the Michigan Senators object to the
consideration of these nominees for purposes totally unrelated to their
personal qualifications. Simply put, they believe that two Clinton
nominees from Michigan who were not confirmed should be renominated by
President Bush. Because the White House has not taken this
extraordinary step of renominating two of former President Clinton's
nominees, the Michigan Senators have decided to block, to obstruct, all
four of Michigan's circuit court nominees. I might add, they are
blocking the district court nominees as well.
I believe the reason it is important for us to shed light on this
issue is--and I am sure the American people and my colleagues will
agree--that this is not a valid reason to hold the people of the entire
Sixth Circuit Court hostage and inflict damage and delay on our
constituents.
The situation is simply unacceptable and cannot continue. The
Michigan Senators, I believe, should not be able to prevent the entire
Senate from acting on four outstanding nominees who would fill what we
all know are officially classified as judicial emergencies on the
appellate court that is operating with fully one-fourth of its seats
vacant right now. These are judicial emergencies.
I should note that one of these nominees, Judge Henry Saad, was first
nominated by the first President Bush and was never given a hearing. He
has been waiting, in effect, for over a decade. It bears noting that
when he is confirmed by this Senate, he will be the first Arab American
to serve on the Federal courts.
The Constitution of the United States requires that the Senate
responsibly and expeditiously vote on the President's nominees--``yea''
or ``nay''--and allow the courts to get on with their work. Instead,
what is happening is that the President's nominees to the Sixth Circuit
are being held up, and the Senate is blocked from performing its
constitutional duty.
Among the 12 U.S. Courts of Appeals, the Sixth Circuit is now dead
last in the timeliness of its disposition of cases.
District court judges within the Sixth Circuit warn us that by having
to perform regular duty as a substitute judge on the court of appeals,
their own trial dockets have slowed considerably.
Only a substantial commitment on the part of the senior judges of the
Sixth Circuit, district judges from the within the Sixth Circuit, and
visiting appellate judges from other circuits has kept the caseload
even barely manageable. The Sixth Circuit is the third busiest court of
appeals, and Chief
[[Page S9437]]
Judge Boyce Martin has asked Congress to authorize a 17th judge for the
court. The court would be overworked even if it had its full complement
of 16 judges.
According to District Judge Robert Bell, W.D. Michigan, ``We're
having to backfill with judges from other circuits, who are basically
substitutes. You don't get the same sense of purpose and continuity you
get with full-fledged court of appeals judges.'' Furthermore, ``we
don't have the time or the resources that the circuit court has. You
can't help to conclude that if we had 16 full-time judges with the full
complement of staff, that each case might get more consideration . .
.''
Those are very troubling words: ``Each case might get more
consideration.'' It is unconscionable that we would deliberately allow
our courts to get clogged up, backlogged, and undermined because some
in Washington wish to politicize the process. Our courts are supposed
to be fair and impartial. They are supposed to serve both victims and
defendants. We are undermining the rights of our fellow citizens if we
do not resolve this issue.
It is not just judges who are seeing what is happening. United States
attorneys in Michigan tell us that the delays caused by the vacancies
are complicating their ability to prosecute wrongdoers, defendants are
able to commit more crime while awaiting trial, there is less
consistency in the court's jurisprudence, and the United States is
effectively being deprived of en banc review in some cases.
A letter signed by 31 Assistant United States Attorneys in the
Eastern District of Michigan states:
[i]n years past, it was the normal practice of the Sixth
Circuit that a case would be heard by the Court approximately
three months after all briefs were filed, and in most cases
an opinion would issue in about three additional months. At
present, due to the large number of vacancies on the Court .
. . it has been taking on average between twelve and eighteen
months longer for most appeals to be completed . . .
Moreover, they go on:
[D]elays in criminal cases hurt the government . . . [T]he
longer a case goes on, the more chance there is that
witnesses will disappear, forget, or die, documents will be
lost, and investigators will retire or be transferred . . .
In some cases, convicted criminal defendants are granted bond
pending appeal. The elongated appellate process therefore
allows defendants to remain on the street for a longer period
of time, possibly committing new offenses. In addition, the
longer delay makes retrials more difficult if the appeal
results in the reversal of a conviction.
They go on:
[T]he Sixth Circuit has resorted to having more district
judges sit by designation as panel members. This practice has
contributed to a slowdown of the hearing of cases in the
district courts, because the district judges are taken out of
those courtrooms. The widespread use of district judges also
provides for less consistency in the appellate process than
would obtain if full-time Circuit Judges heard most of the
appeals.
And they conclude:
In some cases, the small number of judges on the Court has
served to effectively deprive the United States of en banc
review . . . Achieving a unanimous vote of all of those
judges of the Court who were not part of the original panel
is, as a matter of practice, impossible, and not worth
seeking. However, if the Court was at full strength, an en
banc review could have been granted with the votes of about
two thirds of the active judges who were not part of the
original panel.
I quote their comments at length because I want to lay out in
unambiguous terms what is happening to our justice system.
Justice delayed is justice denied--justice denied to everyone,
including victims, defendants, and the entire community.
President Bush has nominated four well-qualified individuals from
Michigan to fill these vacancies. The objections of the Michigan
Senators are, in my view, unreasonable. The basis of their complaint is
that two nominees were left without hearings at the end of President
Clinton's term in 2001.
They ignore the fact that two nominees were also left without
hearings at the end of President Bush's term in 1993, which means that
President Clinton got to appoint the same number of judges to the Sixth
Circuit as the number of vacancies that came open during his
Presidency.
Both parties have left nominations ending at the end of Presidents'
terms. But the effort by my Michigan colleagues to block nominations at
the outset of a President's term is unheard of.
Five of the Sixth Circuit's active judges--nearly half--were
appointed by President Clinton.
Let me read from the Grand Rapids Press. It makes the point well,
saying:
The Constitution does not give [Sens. Levin and Stabenow]
co-presidential authority and certainly does not support the
use of the Court of Appeals to nurse a political grudge . . .
[Sens. Levin and Stabenow] have proposed that the president
let a bipartisan commission make Sixth circuit nominations or
that Mr. Bush renominate the two lapsed Clinton nominations.
Mr. Bush has shown no interest in either retreat from his
constitutional prerogatives. Nor should he. Movement in this
matter should come from Sens. Levin and Stabenow--and,
clearly, it should be backward.
Our courts cannot work if we do not have judges to run them. And our
communities suffer when our courts do not work--victims, who never see
justice, defendants who hang in limbo, and communities that go
unprotected.
President Bush's judicial nominees deserve a simple up-or-down vote.
That is all that is being asked. This is one of our most important
constitutional duties. We cannot use the system to nurse grudges. The
consequences are too great. The public expects us to do our duty. I
call upon my fellow Senators to exercise their constitutional
responsibilities and free the Michigan four.
Mr. President, I yield the Republican time to the majority whip, the
Senator from Kentucky.
The ACTING PRESIDENT pro tempore. The Senator from Kentucky.
Mr. McCONNELL. I thank the Chair.
Mr. President, I thank the majority leader for outlining what is
truly a crisis in the Sixth Judicial Circuit, the federal circuit which
includes Tennessee, Kentucky, Ohio, and Michigan.
As this chart illustrates, of the 16 judgeships on the Sixth Circuit,
4 seats are vacant. They are all Michigan seats. They are being held up
by the Michigan Senators, strangely enough, as the majority leader has
outlined, based upon some grievance that occurred in the past. But the
problem is not the past; it is the present. We have a judicial vacancy
crisis in the Sixth Circuit that affects not only the State of Michigan
but litigants in Tennessee, Kentucky, and Ohio.
If we look at the second chart, we will see what the effect is on
litigants. Back in 1996, the Sixth Circuit had to handle about 364
cases per active judge. For 2002, it is up to 643 cases per active
judge, an increase of 77 percent.
The Sixth Circuit is essentially swamped with litigation, and justice
is being denied by being delayed. It is the slowest circuit in the
country. Sixth Circuit litigants have to wait on justice 50 percent
longer than any other litigants in any other part of America just
because they happen to be a litigant in the Sixth Judicial Circuit
because of the action of the Michigan Senators in holding up all four
of these well-qualified nominations to the Sixth Circuit. If you are so
unfortunate as to be a litigant in the Sixth Circuit, you have to wait
50 percent longer than the national average to have your case dealt
with.
Senatorial prerogatives are important, but my recollection is
Senators do not get to pick circuit judges in the first place. I guess
we can have an argument about the blue slip policy as it relates to
district judges, but we do not get to pick circuit judges; they are a
Presidential prerogative.
To simply withhold judges at the circuit level to secure nominations
that the election does not give you an opportunity to achieve--in other
words, the Republicans won the election in 2000--and, by doing that,
dramatically disadvantage litigants not only in your own State but in
three other States, seems to this Senator unfair.
I guess the issue is what can be done about it. As the majority
leader indicated and as I believe the senior Senator from Illinois
indicated last week--the Senator from Illinois noted that there had not
been any hearings on these nominees--my suggestion and the majority
leader's suggestion to the chairman of the Judiciary committee, Senator
Hatch, is to have hearings on these nominees. We have sent him a letter
requesting that, because of the judicial emergencies in the Sixth
Circuit, he go forward with hearings on these nominees.
I hope Chairman Hatch will do that and the committee will forthwith
act
[[Page S9438]]
on these judges, send them to the floor, and let the Senate work its
will because we have a crisis. My people in Kentucky did not have
anything to do with this issue, and they ought not be penalized because
of actions in some other State in the Sixth Judicial Circuit. I hope
Senator Hatch, the chairman of the Judiciary Committee, will hold these
hearings in the very near future.
Mr. FRIST. Will the Senator from Kentucky yield for a question?
Mr. McCONNELL. I do yield for a question.
Mr. FRIST. Mr. President, I ask the Senator from Kentucky to share
his concern as to the effect this particular delay of the Sixth Circuit
nominees has on the people we serve every day and how their real lives
are being affected. I think that is what drives us in moving forward,
recognizing this delay is simply unacceptable.
Mr. McCONNELL. Mr. President, if you are a litigant from Tennessee or
Kentucky and are having to wait 50 percent longer than a litigant in
some other State because of the actions by the Senators from Michigan,
it seems to me that is simply unfair. Because of some grievance that
occurred in the past, some score being settled by holding hostage these
litigants from Tennessee and Kentucky who had nothing to do with this
situation, I think is grossly unfair.
One thing the majority leader has asked Senator Hatch to do that will
help is have hearings, as has been suggested by the senior Senator from
Illinois, and move forward on these nominations.
Mr. FRIST. Mr. President, I thank the Senator. That does bring into
focus what we are here to do. For me, that brings into focus why, for
us to be good stewards of the judiciary, we need to accelerate this
process and move it forward. Indeed, that is what the Constitution
calls upon us to do.
Mr. President, how much time remains on this side?
The ACTING PRESIDENT pro tempore. The leader controls 2 minutes 15
seconds.
Mr. FRIST. I yield the remainder of our time to the distinguished
Senator from Tennessee.
The ACTING PRESIDENT pro tempore. The Senator from Tennessee is
recognized.
Mr. ALEXANDER. Mr. President, I thank the majority leader and the
whip for bringing this to the attention of the Senate.
I am new to the Senate. This situation is very disappointing to me as
a Senator from the Sixth Circuit. I will give one example of how this
affects people in real time and real lives in Tennessee, Kentucky,
Ohio, and Michigan. Thirty-one assistant U.S. attorneys in the Eastern
District of Michigan have written a letter to Senator Levin to complain
that the vacancies have slowed justice, have complicated prosecutions,
have enabled criminals to commit more crimes while awaiting trial, have
led to less consistency in decisions, and have deprived the United
States of en banc review in some cases.
A group of law professors, in a letter to the majority leader, stated
that because of the unfilled judicial vacancies, the Sixth Circuit
takes as long as 15 months to reach a final disposition, 5 months more
than the national average.
This is unfair to the people in our State. I hope the Judiciary
Committee will move swiftly to hearings and the Senate will move
swiftly to consider, vote on, and hopefully confirm the Michigan four.
I thank the Chair.
The ACTING PRESIDENT pro tempore. The Senator from Nevada.
Mr. REID. Mr. President, how much time do the Democrats have in
morning business?
The ACTING PRESIDENT pro tempore. The Democrats have 15 minutes under
a previous order.
Mr. REID. Mr. President, I yield all 15 minutes to Senator Mikulski.
The ACTING PRESIDENT pro tempore. The Senator from Maryland is
recognized for up to 10 minutes.
Ms. MIKULSKI. I thank the Chair.
Mr. President, I yield 5 minutes to the Senator from Michigan and
then 10 minutes to myself.
____________________