[Congressional Record Volume 150, Number 103 (Thursday, July 22, 2004)]
[Senate]
[Pages S8582-S8583]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 NOMINATIONS TO THE SIXTH CIRCUIT COURT

  Mr. McCONNELL. Mr. President, on another matter, we will be voting 
later this morning on the nominations of Henry Saad, David McKeague, 
and Richard Griffin to the Sixth Circuit Court of Appeals.
  As this chart shows, the Sixth Circuit covers Michigan, Ohio, 
Kentucky, and Tennessee.
  For the last 2 years, the Sixth Circuit has been trying to function 
with 25 percent of its seats empty. That vacancy rate is, as it has 
been, the highest vacancy rate in the Nation. Not surprisingly, the 
Judicial Conference has declared all four of these vacant seats to be 
``judicial emergencies.''
  For the last 3 years, I have taken to the floor to decry the crushing 
burden under which the Sixth Circuit operates. The years change but one 
seemingly immutable fact remains: The Sixth Circuit remains the slowest 
circuit in the Nation by far. According to the Administrative Office of 
the Courts, last year the Sixth Circuit was a full 60-percent slower 
than the national average. According to the AOC, the national average 
for disposing of an appeal is 10\1/2\ months, but in the Sixth Circuit 
it takes almost 17 months to decide an appeal. That means in another 
circuit, if you file your appeal at the beginning of the year, you get 
your decision around Halloween. But in the Sixth Circuit, if you file 
your appeal at the same time, you get your decision after the following 
Memorial Day, over a half a year later. If you can believe it, each 
year the disparity between the Sixth Circuit and its sister circuits 
gets worse.
  In 2001 and 2002, the Sixth Circuit was the slowest circuit in the 
country, just like last year. In those years, the average time for 
decision was 15.3 and 16 months, respectively, but last year the delay 
jumped up to almost 17 months. So clearly my constituents and the other 
residents of the circuit are suffering more and more as the years go 
by.
  What is the reason for this sorry state of affairs? An intra-
delegation dispute from years ago when nearly a quarter of the current 
Senate wasn't even here. Nor, I might add, was the current President 
around for that dispute either. He, too, has nothing to do with it.
  This dispute drags on year after year. As I understand it, although 
only two seats were involved in this dispute, six nominees, including 
four circuit nominees, continue to be bottled up.
  Frankly, I don't know whose fault it was it has been so long. But I 
do know that neither the 4 million people in Kentucky, nor the 6 
million people in Tennessee, nor the 11 million people in Ohio--nor 
their Senators--were any part of it.
  They are all suffering for it, though, as are the 10 million people 
from Michigan.
  The Michigan legislature has in fact passed a resolution calling on 
us, the U.S. Senate, to confirm these nominees. I ask consent that a 
copy of this resolution from the Michigan State Senate be printed in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                       Senate Resolution No. 127

       Whereas, The Senate of the United States is perpetuating a 
     grave injustice and endangering the well-being of countless 
     Americans, putting our system of justice in jeopardy in 
     Michigan and the states of the Sixth Circuit of the federal 
     court system; and
       Whereas, The Senate of the United States is allowing the 
     continued, intentional obstruction of the judicial 
     nominations of four fine Michigan jurists: Judges Henry W. 
     Saad, Susan B. Neilson, David W. McKeague, and Richard A. 
     Griffin, all nominated by the President of the United States 
     to serve on the United States 6th Circuit Court of Appeals; 
     and
       Whereas, This obstruction is not only harming the lives and 
     careers of good, qualified judicial nominees, but it is also 
     prolonging a dire emergency in the administration of justice. 
     This emergency has brought home to numerous Americans the 
     truth of the phrase ``justice delayed is justice denied''; 
     and
       Whereas, Both of Michigan's Senators continue to block the 
     Judiciary Committee of the United States Senate from holding 
     hearings regarding these nominees. This refusal to allow the 
     United States Senate to complete its constitutional duty of 
     advice and consent is denying the nominees the opportunity to 
     address any honest objections to their records or 
     qualifications. It is also denying other Senators the right 
     to air the relevant issues and vote according to their 
     consciences. This is taking place during an emergency in the 
     United States 6th Circuit Court of Appeals with the backlog 
     of cases; and
       Whereas, We join with the members of Michigan's 
     congressional delegation who wrote Chairman Orrin Hatch on 
     February 26, 2003, to express their concern that ``if the 
     President's nominations are permitted to be held hostage, for 
     reasons not personal to any nominee, then these judicial 
     seats traditionally held by judges representing the citizens 
     of Michigan may be filled with nominees from other states 
     within the Sixth Circuit. This would be an injustice to the 
     many citizens who support these judges and who have given 
     much to their professions and government in Michigan''; and
       Whereas, We are concerned about the Sixth Circuit as a 
     whole, a circuit court understaffed, with 4 of its 16 seats 
     vacant, knowing that the Sixth Circuit ranks next to last out 
     of the 12 circuit courts in the time it takes to complete its 
     cases. Since 1996, each active judge has had to increase his 
     or her number of decisions by 46%--more than three times the 
     national average. In the recent past, the Sixth Circuit has 
     taken as long as, 15.3 months to reach a final disposition of 
     an appeal. With the national average at only 10.9 months, 
     this means the Sixth Circuit takes over 40% longer than the 
     national average to process a case; and
       Whereas, The last time the Sixth Circuit was this 
     understaffed, former Chief Judge Gilbert S. Merritt said that 
     it was handling ``a caseload that is excessive by any 
     standard.'' Judge Merritt also wrote that the court was 
     ``rapidly deteriorating, understaffed and unable to properly 
     carry out their responsibilities''; and
       Whereas, Decisions from the Sixth Circuit are slower in 
     coming, based on less careful deliberation, and, as a result, 
     are less likely to be just and predictable. The effects on 
     our people, our society, and our economy are far-reaching, 
     including transaction costs. Litigation increases as people 
     strive to continue doing business when the lines of swift 
     justice and clear precedent are being blurred; and
       Whereas, President Bush has done his part to alleviate this 
     judicial crisis. Over the past two years, he has nominated 
     eight qualified people to the Sixth Circuit Court of Appeals, 
     with three of them designated to address judicial 
     emergencies. Four of these nominees continue to languish 
     without hearings because of the obstruction of the two 
     Michigan Senators; Now therefore, be it
       Resolved by the Senate, That we memorialize the United 
     States Senate and Michigan's United States Senators to act to 
     continue the confirmation hearings and to have a vote by the 
     full Senate on the Michigan nominees to the United States 6th 
     Circuit Court of Appeals; and be it further
       Resolved, That copies of this resolution be transmitted to 
     Michigan's United States Senators and to the President of the 
     United States Senate.

  Mr. McCONNELL. Mr. President, that is 31 million people, who continue 
to suffer because our colleagues on the other side refuse to confirm 
any of these four Michigan nominees to the Sixth Circuit.
  Indeed, two of the seats we are talking about were not even involved 
in this dispute. President Clinton never nominated anyone to the seat 
to which Henry Saad was nominated. That vacancy arose on January 1, 
2000.
  And the seat to which David McKeague was nominated did not even 
become vacant until the current Bush administration on August 15, 2001.
  So what the Senators from Michigan seek to do is hold up one-fourth 
of an entire circuit because of a past intra-delegation dispute about 
two of these six seats, the genesis of which occurred many years ago.
  As to disputes on judicial nominees, the Senators from Michigan do 
not have a monopoly on disappointment. There are several Republican 
nominees who were nominated by George H.W. Bush, who waited a year or 
more for a hearing, and who never got one. I note Sixth Circuit nominee 
John Smietanka, D.C. Circuit nominee John Roberts and Fourth Circuit 
nominee Terry Boyle, just to name a few.
  The remedy for disappointment is not to take out your frustration on 
the populace of an entire circuit. Nor is it to demand that a President 
cede his constitutional power to another branch. It is to do what this 
President has done: re-nominate the person when your party is in the 
Oval Office.
  Let us be clear. We are not talking about any particular problems 
with the nominees, including Judge Saad, who would be the first Arab-
American on any Federal circuit court and who has been endorsed by both 
the Chamber of Commerce and the United Auto Workers. That is a pretty 
tall order.

[[Page S8583]]

  Quite frankly, it wouldn't matter who from Michigan the President put 
in the slot: if his name were Henry Ford rather than Henry Saad the 
result would be the same--my colleagues from Michigan would filibuster 
the nominee.
  Why? Presumably because the Michigan Senators didn't get to pick 
Judge Saad or other Michigan nominees to the Sixth Circuit.
  What we are talking about, then, is Senators wanting to adorn 
themselves with the power of co-nomination.
  Let us get back to first principles. Democrat Senators do not get to 
pick circuit court judges in Republican administrations. In fact, 
Republican Senators--myself included--do not get to pick circuit court 
judges in Republican administrations.
  The Constitution gives the power to the President, and the President 
alone, to nominate. We all know as a matter of custom that Senators 
have a good deal of influence over who gets to be a district judge but 
little or no influence over who gets to be a circuit judge. Presidents 
of both parties have been unwilling to delegate the picking of circuit 
court judges to Senators. It is a Presidential prerogative and we 
shouldn't rewrite the Constitution to allow Senators--especially those 
of the opposite party--to nominate judges.
  By tradition, the President may consult with individual Senators. But 
the tradition of ``consultation'' does not transform individual 
Senators into co-Presidents.
  The President is not required to share his constitutional power with 
Senators, or with a ``non-partisan'' commission for that matter.
  We have started a new precedent around here by filibustering judges; 
this is something that I and the vast majority of the Republican caucus 
opposed during the Clinton administration and refused to engage in, 
although Republicans had profound differences with many Clinton 
nominees.
  In fact, 95 percent of the current Senators who never voted for a 
judicial filibuster are Republicans.
  Let me say that again.
  Ninety-five percent of the current Senators who never voted for a 
judicial filibuster are Republicans.
  Our Democrat friends have started this troubling precedent. They have 
filibustered seven nominees and are now approaching double digits.
  If my Democrat friends want to set another precedent, namely that 
Senators in opposite parties get to pick a President's circuit court 
nominees, I have news for you: this precedent may well be used when 
there's a Democrat in the Oval Office whether that is next year or next 
decade.
  In closing, I don't get to pick Republican circuit nominees, and I 
don't think Democrats should get to do so in a Republican 
administration either. That is the President's job.
  The Senate may establish a contrary precedent today. But if it does, 
I and other Republican Senators may invoke it the next time there is a 
Democrat in the White House. So I urge my Democrat friends to be wary 
of the steps they are taking because they are leading us down a 
dangerous path from which there may be no return.
  The PRESIDING OFFICER. The Senator from Nevada.

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