[Congressional Record Volume 151, Number 62 (Thursday, May 12, 2005)]
[Senate]
[Pages S5010-S5011]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     VACANCIES ON THE SIXTH CIRCUIT

  Mr. McCONNELL. Mr. President, for the last 4 years, I have taken to 
the Senate floor from time to time to decry the crushing burden under 
which the Sixth Circuit Court of Appeals operates. The year has 
changed, but one seemingly immutable fact remains: The Sixth Circuit is 
the slowest judicial circuit in the country by far.
  The Sixth Circuit has 16 seats. It covers Michigan, Ohio, Kentucky, 
and Tennessee, with a population of over 30 million people. For the 
last 3 years, the Sixth Circuit has been trying to function with 25 
percent of its seats empty. Twenty-five percent of the Sixth Circuit is 
vacant. The vacancy rate is, as it has been for much of this dispute, 
the highest of any circuit in the Nation.
  Not surprisingly, the judicial conference has declared all four of 
these vacant seats to be judicial emergencies. According to the 
Administrative Office of the Courts, last year, as the year before it, 
the Sixth Circuit was a full 60 percent behind the national average. 
According to 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, 16.8 months. That means that in other circuits, 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.
  As the obstruction drags on year after year after year, things have 
gone from bad to worse. In 2001 and 2002, the Sixth Circuit was also 
the slowest circuit in the country. In those years, the average time 
for decision in the Sixth Circuit was 15.3 and 16 months respectively. 
In 2003, the average length of time for decision in the Sixth Circuit 
jumped to almost 17 months, 16.8--again, the slowest in the country.
  I guess things have now hit rock bottom because the AOC reports that 
last year, 2004, the Sixth Circuit suffered from the same delay, almost 
17 months, 16.8. Yet again, it was the slowest circuit in the Nation.
  We all know the old saying that justice delayed is justice denied. 
The 30 million residents of the Sixth Circuit have been denied justice 
due to the continued obstruction of Sixth Circuit nominees by our 
Democratic colleagues.
  What is the reason for this sorry state of affairs? An 
intradelegation spat from years ago when a quarter of the current 
Senate wasn't even here, nor was the current President. This dispute 
drags on year after year after year. I don't know who started it. I do 
know that with respect to nominees not getting hearings, the Democrats 
do not have a monopoly on disappointment. I also know that the 
obstruction that some of my colleagues are practicing on the Sixth 
Circuit is out of proportion to any alleged grievance.
  My Democratic colleagues continue to block four Sixth Circuit 
nominees from Michigan: Henry Saad, David McKeague, Richard Griffin, 
and Susan Neilson. They are also blocking three district court 
nominees: Thomas Ludington, Dan Ryan, and Sean Cox. In fact, no Federal 
judges from Michigan have been confirmed during the Bush 
administration. Of the seven vacancies the Democrats refuse to let the 
Senate fill, five of the seats were not even involved in this dispute. 
Let me repeat that. Of the seven vacancies the Democrats from Michigan 
will not let be filled, five of the seven were not even involved in 
whatever this ancient dispute was.
  President Clinton never nominated anyone to the seat to which Henry 
Saad was nominated. The seat to which David McKeague was nominated did 
not even become vacant until the current Bush administration on August 
15 of 2001, and the three district court seats that are being blocked 
are not involved in the dispute, either. So five of the seven seats had 
absolutely nothing to do whatever with this dispute that went back to 
the Clinton years.
  What the Michigan Senators are doing is holding up one-fourth of an 
entire circuit in crisis, along with three district court seats, 
because of internal disputes about two seats, the genesis of which 
occurred years and years ago. This is an absolutely embarrassing 
situation.
  What are our friends from Michigan demanding in order to lift the 
blockade? They want to pick circuit court appointments. Let's get back 
to first principles. As much as they would like, Democratic Senators do 
not get to pick circuit court judges in Republican administrations. In 
fact, as much as we would like on this side of the aisle, Republican 
Senators do not get to pick circuit court judges in Republican 
administrations. In short, circuit court appointments are not 
Senatorial picks. Article II, section 2, of the Constitution clearly 
provides that the President and the President alone nominates judges. 
It then adds that the Senate is to provide its advice and consent to 
the nominations the President has made. By tradition, the President may 
consult with Senators if he chooses, but the tradition of consultation 
does not transform individual Senators into co-Presidents. We have 
elections for that, and President Bush has won the last two.
  Finally, the Democrats have recently indicated that they will afford 
three of the circuit nominees an up-or-down

[[Page S5011]]

vote along with one of the other filibustered nominees if we abandon 
our efforts to ensure that all nominees receive an up-or-down vote. The 
Democrats don't care which of the other four nominees are put on the 
bench because they let us pick the nominee.
  Well, we are not going to toy with these people's careers. They have 
waited patiently for years to receive the simple dignity of an up-or-
down vote, and we are working to restore the norms and traditions of 
the Senate that existed prior to the previous Congress so they may 
receive one. But the fact that our Democratic colleagues are now 
willing to afford one or more of the individual filibustered nominees 
the courtesy of an up-or-down vote but not allow the same nominees 
collectively to receive up-or-down votes shows that our Democratic 
colleagues recognize that each of these nominees is deserving of an up-
or-down vote. More than that, it shows the partisan and political 
nature of the opposition.
  Last year, our Democratic colleagues said all seven of these judicial 
nominees were ``too extreme.'' Now they say only three are too extreme. 
So one of the following three statements is true: The nominees changed, 
or the Democrats' definition of what constitutes extremism has changed, 
or they never really meant it in the first place. Let me repeat that. 
One of three things is true: Either the nominees who were extreme last 
year are not extreme this year, the Democrats' definition of what 
constitutes extremism changed between last year and this year, or they 
never really meant it in the first place.
  It is no wonder many people concluded that what is at work is really 
just partisan politics. Mr. President, we should not play partisan 
games with the nomination process. We should take our constitutional 
duties seriously.
  I ask our Democratic colleagues to afford these nominees collectively 
what they are willing to afford each of them individually; that is, a 
simple up-or-down vote.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SCHUMER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from New York.

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