[Congressional Record Volume 151, Number 76 (Thursday, June 9, 2005)]
[Senate]
[Pages S6284-S6292]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATION OF RICHARD A. GRIFFIN TO BE UNITED STATES CIRCUIT JUDGE FOR
THE SIXTH CIRCUIT
______
NOMINATION OF DAVID W. McKEAGUE TO BE UNITED STATES CIRCUIT JUDGE FOR
THE SIXTH CIRCUIT
The PRESIDING OFFICER. The clerk will report the next two nominations
en bloc.
The assistant legislative clerk read the nominations of Richard A.
Griffin, of Michigan, to be United States Circuit Judge for the Sixth
Circuit, and David W. McKeague, of Michigan, to be United States
Circuit Judge for the Sixth Circuit.
The PRESIDING OFFICER. Who yields time? The Senator from Michigan.
Ms. STABENOW. Mr. President, I rise this afternoon in support of the
nominations of Judge David McKeague and Judge Richard Griffin to the
Sixth Circuit Court.
For some time now, Senator Levin and I have been proposing the Senate
move forward on these nominees as part of a good-faith effort for us to
be working together in a bipartisan way in the Senate. I am pleased we
are now to vote on the nomination of Judge Griffin and Judge McKeague
as a result of the bipartisan agreement to move forward and stop what
was called the nuclear option, which would have eliminated the checks
and balances in the Senate. It is my hope this bipartisan agreement
will help restore comity and civility in our very important Chamber.
I will say a few words about these two nominees. Judge Richard
Griffin is a lifelong resident of Michigan. He would be the first
nominee to the Sixth Circuit from Traverse City, MI. He has had a
distinguished career both as an attorney and as a State appeals judge.
He has served on the Michigan Court of Appeals for over 16 years and
has been rated as ``well-qualified'' by the American Bar Association.
Judge David McKeague is also a lifelong resident of Michigan. He
would be the first nominee from my home of Lansing, MI, to the Sixth
Circuit. Judge McKeague has also had a distinguished career as an
attorney, a law professor, and a Federal judge. He served on the U.S.
District Court for the Western District of Michigan for over 12 years
and has been rated ``well-qualified'' by the American Bar Association.
I urge my colleagues to join me and Senator Levin in supporting the
nomination of Judge Griffin and Judge McKeague. It is important for us
to move forward.
I hope confirming the Sixth Circuit nominees before the Senate will
help restore comity and civility to the judicial nominations process.
We have a constitutional obligation to advise and consent on Federal
judicial nominees. This is a responsibility I take extremely seriously,
as I know my colleagues do on both sides of the aisle. These are not
decisions that will affect our courts for three or four years, but for
30 or 40 years, making it even more important for the Senate not to act
as a rubberstamp.
This is the third branch of government and it is important we move
forward in a positive way and be able to work with the White House on
nominees who will reflect balance and reflect a mainstream approach for
our independent judiciary.
I hope the White House will begin working with the Senate in a more
bipartisan and inclusive manner on judicial nominations. I look forward
to working with the White House on any future Michigan nominees since
it is absolutely critical we work together in filling these positions.
I yield the floor.
The PRESIDING OFFICER (Mr. Chafee). The Senator from Michigan.
Mr. LEVIN. Mr. President, I am supporting the two nominations before
the Senate.
With today's confirmation of William Pryor, 211 of 218 of President
Bush's judicial nominees have been confirmed. After Richard Griffin's
and David McKeague's upcoming confirmation, 213 of 218 of President
Bush's nominees will have been confirmed. What a contrast to the way
that President Clinton's nominees were treated. More than 60 of
President Clinton's nominees never received a vote in the Judiciary
Committee. In the battles over judicial nominations that have consumed
this body in recent years, the way those nominees were treated stands
out as uniquely unfair. Even then-White House Counsel Alberto Gonzales
acknowledged that treatment of President Clinton's nominees was
``inexcusable.''
For the last 4 years of the Clinton Presidency, there were Michigan
vacancies on the Sixth Circuit court. The Republican majority refused
to hold hearings in the Judiciary Committee on Clinton nominations for
those vacancies. Indeed, one of those nominees waited longer for a
hearing in the Senate Judiciary Committee than any nominee in American
history had--a hearing she ultimately never received.
Her nomination was held up for some time by former Senator Spencer
Abraham in an attempt to secure the nomination of his preferred
candidate to a second position. Then, the seats were kept vacant
because the majority hoped that a Republican would be elected President
and would put forward his nominees for those vacancies. When President
Bush came to office, he not only filled positions which should have
been filled by nominees of President Clinton, his nominees were allowed
to go forward even over the objections of their home state senators.
Today, we will confirm two of President Bush's Michigan nominees to
the Sixth Circuit Court. They should be confirmed and I will vote for
them. In deciding to move on, we should not excuse the treatment of
President Clinton's nominees or the refusal of President Bush to adopt
a bipartisan solution to the acknowledged wrong. A brief history of the
Michigan vacancies on the Sixth Circuit will also hopefully prevent a
recurrence of the tactic which was used against Clinton nominees--
denial of a hearing in the Judiciary Committee, year after year--not
just in the last year of a presidential term but in the years before
the last year of a presidential term.
Michigan Court of Appeals Judge Helene White was nominated to fill a
[[Page S6285]]
Sixth Circuit vacancy on January 7, 1997. Some months later, Senator
Leahy, as ranking member of the Judiciary Committee, came to this floor
to urge that the Committee act on her nomination. This would be the
first of at least sixteen statements on the Senate floor by Senator
Leahy regarding the Sixth Circuit nominations over a 4 year period.
A year and a half after Judge White was nominated--Senator Leahy came
to the floor and said: ``At each step of the process, judicial
nominations are being delayed and stalled.'' His plea was again ignored
and the 105th Congress ended without a hearing for Judge White.
On January 26, 1999, President Clinton again submitted Judge White's
nomination. That day, I urged both Senator Abraham and Chairman Hatch
to recognize that fundamental fairness dictated that she receive an
early hearing in the 106th Congress, having received no hearing in the
105th.
On March 1, 1999, a second Michigan vacancy on the Sixth Circuit
opened up. The next day, Senator Leahy returned to the floor,
reiterated that nominations were being stalled by the majority.
The reason that the majority in the Judiciary Committee did not hold
a hearing on Judge White was because of Senator Abraham's opposition,
based on his effort to obtain the nomination of Jerry Rosen, a district
court judge in the Eastern District of Michigan, to the second Michigan
opening on the Sixth Circuit. President Clinton, however, in September
of 1999, decided to nominate Kathleen McCree Lewis to that seat.
Soon thereafter, I spoke with Senator Abraham about the Lewis and
White nominations, Senator Leahy again urged the Committee to act,
calling the treatment of judicial nominees ``unconscionable.''
On November 18, 1999, I again urged Senator Abraham and Chairman
Hatch to proceed with hearings for the two Michigan nominees. At that
time I noted that Judge White had been waiting for nearly 3 years and
that the confirmation of the two women was ``essential for fundamental
fairness.'' 1999 ended without Judiciary Committee hearings.
In February of 2000 Senator Leahy spoke again on the Senate floor
about the multiple vacancies on the Sixth Circuit. Less than two weeks
later, I again made a personal plea to Senator Abraham and Chairman
Hatch to grant a hearing to the Michigan nominees.
On March 20, 2000, the chief judge of the Sixth Circuit sent a letter
to Chairman Hatch expressing concerns about a reported statement from a
member of the Judiciary Committee that ``due to partisan
considerations'' there would be no more hearings or votes on vacancies
for the Sixth Circuit Court of Appeals during the Clinton
administration. His concern would turn out to be well founded.
On May 2, 2000, I sent a note to Chairman Hatch, but neither Judge
White's nor Ms. Lewis's nominations were placed on the Committee's
hearing agenda. Over the next several months, Senator Leahy went to the
floor ten more times to urge action on the Michigan nominees. I also
raised the issue on the Senate floor on several occasions.
In the fall of 2000, in a final attempt to move the nominations of
the two Michigan nominees, I met with Majority Leader Lott to discuss
the situation. On September 12, I sent him a letter saying ``the
nominees from Michigan are women of integrity and fairness. They have
been stalled in this Senate for an unconscionable amount of time
without any stated reason.'' Neither the meeting with Senator Lott nor
the letter prompted the Judiciary Committee to act on the nominations,
and the 106th Congress ended without hearings for either woman.
By this point, Judge White's nomination had been pending for nearly 4
years--the longest period of time that any circuit court nominee had
waited for a hearing in the history of the United States Senate. Ms.
Lewis's nomination had been pending for about a year and a half.
The experience of Kent Markus of Ohio will shed some light on these
events. Professor Markus was nominated by President Clinton in February
of 2000, to fill an Ohio vacancy on the sixth Circuit. Both home state
senators indicated their approval of his nomination. Nevertheless, he
was not granted a Judiciary Committee hearing. In his testimony before
the Judiciary Committee, Professor Markus recollected the events:
``. . . To their credit, Senator DeWine and his staff and
Senator Hatch's staff and others close to him were straight
with me. Over and over again they told me two things:
(1) There will be no more confirmations to the 6th Circuit
during the Clinton Administration, and
(2) This has nothing to do with you; don't take it
personally--it doesn't matter who the nominee is, what
credentials they may have or what support they may have.
And Professor Markus continued:
``. . . On one occasion, Senator DeWine told me ``This is
bigger than you and it's bigger than me.'' Senator Kohl, who
had kindly agreed to champion my nomination within the
Judiciary Committee, encountered a similar brick wall . . .
The fact was, a decision had been made to hold the vacancies
and see who won the presidential election. With a Bush win,
all those seats could go to Bush rather than Clinton
nominees.
The logic of it was quite straightforward, and unfair.
Senator Stabenow and I are not alone in our view that what occurred
with respect to the Michigan nominees was fundamentally unfair. As I
said, even Judge Gonzales, then-White House Counsel, has acknowledged
that the treatment of some nominees during the Clinton administration
was ``inexcusable.''
Given that belief, Senator Stabenow and I had hoped that the Bush
administration might consider a bipartisan approach and believed that
simply moving forward with Bush nominees would mean the unfair tactic
used against the Clinton nominees would succeed.
The number of Michigan vacancies on the federal courts provided an
unusual opportunity for bipartisan compromise. In an effort to achieve
a fair resolution of the mistreatment of President Clinton's Michigan
nominees, Senator Stabenow and I proposed a bipartisan commission to
recommend nominees to the President for two of the then-four open
Michigan Sixth Circuit positions. Similar commissions have successfully
been used in other states. Such a commission would not guarantee the
recommendation of any particular individual, much less the nomination
of any particular individual, since the nomination decision is the
President's alone. That proposal was rejected. The administration
rejected another proposal to resolve the matter suggested by Senator
Leahy and endorsed by then-Republican Governor John Engler.
In the hopes of stimulating a bipartisan response, Senator Stabenow
and I returned negative blue slips on President Bush's nominees.
Despite past practice of not proceeding in the face of negative blue
slips from home state Senators, the Judiciary Committee held hearings
on the nominees.
In 1999, Chairman Hatch had stated, with respect to the Clinton
nomination of Judge Ronnie White, ``had both home-State Senators been
opposed to Judge (Ronnie) White in committee, [he] would never have
come to the floor under our rules, [and] that would be true whether
they are Democrat Senators or Republican Senators. That has just been
the way the Judiciary Committee has operated . . .''
During the entire Clinton Presidency, it is my understanding that not
a single judicial nominee got a Judiciary Committee hearing if there
was opposition by one home-state Senator, let alone two. In our case,
both home-state Senators opposed proceeding with President Bush's
Michigan judicial nominees absent a bipartisan approach, but the
Committee held hearings anyway.
So, the unreturned blue slips of one Republican Senator was enough to
block Judiciary Committee consideration of two nominees by a Democratic
President. But despite negative blue slips of both home State
Democratic Senators, hearings were held for Sixth Circuit nominations
of President Bush. That is inconsistent and unfair.
Mr. President, each of us who was here during that time knows what
happened to President Clinton's Michigan nominees to the Sixth Circuit
was unfair. Senator Hatch said it accurately, and I give him credit for
putting it just this way when, in July of 2004, he said the following:
The two senators from Michigan have been very upset and if
I'd put myself in their shoes I'd feel the same way.
[[Page S6286]]
Well, it is time, however, to move on. And we support moving on with
these two nominations and hope that in doing so, it might produce some
bipartisanship and compromise. But bipartisanship cannot just be a one-
way street. It requires reciprocity.
In closing, I thank the many Senators who worked for a bipartisan
approach to the Michigan nominees. In particular, I thank Senator Harry
Reid, who, like Senator Daschle before him, got personally involved and
tried to achieve a compromise. I thank Senator Leahy for his
extraordinary efforts over the many years. I cannot tell you how many
times he came to the Senate floor to make a statement. I thank him for
his efforts personally to try to resolve this matter. I also thank
Senator Specter, who has recently provided some bipartisan suggestions
to the White House.
With that, Mr. President, I thank the Chair and yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Cornyn). The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. FRIST. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SPECTER. Mr. President, President George W. Bush first nominated
Judge Richard Allen Griffin to the Sixth Circuit on June 26, 2002.
During the 108th Congress, on June 16, 2004, the committee held a
hearing on the nomination of Judge Griffin. He was successfully voted
out of committee on July 20, 2004.
Judge Griffin is a judge of the Michigan Court of Appeals currently
serving his 16th year on the court.
Judge Griffin is an outstanding and highly qualified candidate.
After graduating magna cum laude from Western Michigan University
Honors College, Judge Griffin received his juris doctor from the
University of Michigan Law School in 1977.
Upon graduating from law school, Judge Griffin clerked for the
Honorable Washtenaw Circuit Judge Ross W. Campbell. He then became an
associate and eventual partner at Coulter Cunningham, Davison & Read.
In 1985, Judge Griffin started his own firm, Read & Griffin, where he
practiced a broad range of litigation, including automobile negligence,
premises liability, products liability, and employment law. Judge
Griffin engaged in both plaintiff and defense personal injury
litigation.
During this time, Judge Griffin also provided pro bono legal services
as a volunteer counselor and attorney with the Third Level Crisis
Clinic.
In 1989, Judge Griffin successfully ran for the Michigan Court of
Appeals. He was reelected to retain his seat in 1996, and again in
2002.
The American Bar Association rated Judge Griffin ``Well-Qualified''
for appointment to the Sixth Circuit.
Judge Griffin has engaged in numerous noteworthy activities. In
addition to his duties on the Michigan Court of Appeals, Judge Griffin
also devotes a significant amount of time to volunteer activities.
Judge Griffin has served as president of the Grant Traverse Zoological
Society since 1987. He also has served as chief judge of the YMCA Youth
in Government Mock Trial Program since 1997.
Judge Griffin has widespread support.
Gerald Ford, 38th President of the United States, said:
I can say with conviction that Judge Griffin is a person of
the highest quality character. As the record shows, he has
been a very excellent Judge with unquestioned integrity.
Maura D. Corrigan, chief justice, Michigan Supreme Court, said:
Judge Griffin brings a depth of practical experience and a
grasp of real life problems to the decisions of cases . . .
Richard Allen Griffin is a man of integrity and probity who
is fully capable of discharging the duty of protecting our
Constitution and laws. He is deserving of the public trust as
he has already proven himself worthy of that trust during his
years of service to the State of Michigan.
William C. Whitbeck, chief judge, Michigan Court of Appeals, said:
[T]here is no question that the United States Senate should
promptly confirm Judge Griffin for the position on the Sixth
Circuit . . . He is a decisive, scholarly judge with an
instinct for the core issues and with a flair for authoring
crisp, understandable opinions.
Stephen L. Borrello, judge, Michigan Court of Appeals, said:
Judge Griffin possesses a rare trait amongst my colleagues:
an intrinsic sense of justice. His innate fairness is
combined with a rigorous work ethic and a thorough grasp of
legal issues. Judge Griffin is one of the finest jurists in
this State.
Mr. President, Judge David McKeague was originally nominated by
President George W. Bush on November 8, 2001, and was renominated by
the President on February 14, 2005. He received a hearing on June 16,
2004, and was voted out of the Judiciary Committee on July 20, 2004.
Judge McKeague is extremely well qualified to sit on the Court of
Appeals for the Sixth Circuit. Judge McKeague has a B.A. from the
University of Michigan and a J.D. from the University of Michigan Law
School. Upon his graduation from law school, he joined the law firm of
Foster, Swift, Collins & Smith, P.C., in Lansing, MI, and was elected a
shareholder and director of the firm. Judge McKeague served on the
firm's Executive Committee in various offices, and was chairman of the
firm's Government and Commerce Department, for many years before his
confirmation to the Federal bench in 1992.
Since February 1992, Judge McKeague has served as a judge on the U.S.
District Court for the Western District of Michigan. Judge McKeague has
regularly participated by designation on, and authorized appellate
opinions for, panels of the U.S. Court of Appeals for the Sixth
Circuit. The American Bar Association has rated Judge McKeague as
unanimously ``well-qualified'' for appointment to the Sixth Circuit.
Judge McKeague is an active member of the community and several
professional associations. Judge McKeague has been active as a member
of several community, local, and professional organizations, including
the Judicial Conference of the United States, the Federal Judicial
Center, the Michigan State and Ingham County bar associations. Both
while in private practice and while on the Federal bench, Judge
McKeague has directed and participated in numerous seminars, moot court
competitions, and trial advocacy programs at high schools, universities
and law schools throughout Michigan.
Prior to his confirmation to the Federal bench, he served 6 years in
the U.S. Army Reserve. Since 1998, he has also served as an adjunct
professor of law at Michigan State University's Detroit College of Law,
where he teaches Federal Jurisdiction and Trial Advocacy.
Judge McKeague has the support of many attorneys and peers in
Michigan, including several Democrats.
John H. Logie, attorney and Mayor of Grand Rapids, said:
What emerged from our mutual experiences was a deep
admiration for Judge McKeague's concerns both with the
processes of the court and with their impact on people. If
these are matters that we want out appellate judges to have
in equal measure, then I can and do assure you that he will
be an excellent choice.
Paul D. Borman, U.S. District Judge for the Eastern District of
Michigan, said:
I have known Judge McKeague for seven years and I can vouch
for his intelligence, hard work, and commitment to equal
protection under the law.
Randall S. Levine, attorney and life-long Democrat, said:
Judge McKeague is extremely intelligence, possesses a sharp
wit and keen intellect . . . His integrity is beyond
reproach.
Mr. LEAHY. Mr. President, as we debate the nominations of Richard
Griffin and David McKeague to the Sixth Circuit Court of Appeals, and
move on to their almost certain confirmation, I believe we must
acknowledge the cooperation and statesmanship of the two Senators from
Michigan who have compromised a great deal in order to contribute to
the preservation of the rules and traditions of the Senate. Senator
Levin and Senator Stabenow have spent much of the last 4 years trying
to persuade the President to fulfill his constitutional duty and
consult with them on his Michigan appointments, to no avail. Because of
that lack of cooperation, combined with the shameful treatment given to
President Clinton's nominees, the Michigan Senators exercised their
right as home State Senators to withhold their consent to the
nominations of candidates chosen without consultation to the Sixth
Circuit.
[[Page S6287]]
The Michigan Senators had the support of other Senators. Nonetheless,
the Michigan Senators, with grace and dedication to this institution,
withdrew their opposition to three of those nominees as part of the
discussions related to averting the nuclear option. Because of their
willingness to go forward, we are here today debating and voting upon
the confirmation of two nominees to the Sixth Circuit despite a lack of
consultation by President Bush and a complete disregard for the history
of this court.
First, it is essential to explain what a significant break with
precedent it was that these two nominees were even given a hearing in
the last Congress without the support of either of their home State
Senators. The scheduling of that hearing was another example of the
downward spiral the committee traveled over the last 2 years, when we
witnessed rule after rule broken or misinterpreted away.
The list is long. From the way that home State Senators were treated
to the way hearings were scheduled, to the way the committee
questionnaire was altered, to the way our committee's historic
protection of the minority by committee rule IV was violated; the
Republican leadership on the committee last Congress destroyed
virtually every custom and courtesy that had been available to help
create and enforce cooperation and civility in the confirmation
process.
The then-chairman of the committee crossed a critical line that he
had never before crossed when in June of 2003, he held a hearing for
Henry Saad, another of the Michigan nominees to the Sixth Circuit,
opposed by both of his home State Senators. It may have been the first
time any chairman and any Senate Judiciary Committee proceeded with a
hearing on a judicial nominee over the objection of both home State
Senators. It was certainly the only time in the last 50 years, and I
know it to be the only time during my 31 years in the Senate.
Having broken a longstanding practice of the Judiciary Committee
founded on respect for home State Senators, whether in the case of a
district or circuit court nominee, the committee's leadership did not
hesitate to break it again and hold a hearing for Richard Griffin and
David McKeague.
The Michigan Senators did not do what so many other Senators did when
holding up more than 60 of President Clinton's nominees, and block them
silently. To the contrary, they came to the committee and articulated
their very real grievances with the White House and their honest desire
to work towards a bipartisan solution to the problems filling vacancies
in the Sixth Circuit. We should have respected their views, as the
views of home State Senators have been respected for decades. I urged
the White House to work with them. I proposed reasonable solutions to
the impasse that the White House rejected. The Michigan Senators
proposed reasonable solutions, including a bipartisan commission, but
the White House rejected every one.
Although President Bush promised on the campaign trail to be a uniter
and not a divider, his practice once in office with respect to judicial
nominees has been most divisive. Citing the remarks of a White House
official, The Lansing State Journal reported that President Bush was
simply not interested in compromise on the existing vacancies in the
State of Michigan. It is unfortunate that the White House was never
willing to work toward consensus with all Senators and on all courts.
Over the last 4 years, time and again the good faith efforts of Senate
Democrats to repair the damage done to the judicial confirmation
process over the previous six years were rejected. And time and again,
the rules were thrown by the wayside.
When Republicans chaired the Judiciary Committee and we were
considering the nominations of a Democratic President, one negative
blue slip from just one home State Senator was enough to doom a
nomination and prevent a hearing on that nomination. This included all
nominations, including those to the circuit courts. How else to explain
the failure to schedule hearings for such qualified and
noncontroversial nominees as James Beaty and James Wynn, African-
American nominees from North Carolina? What other reason could
plausibly be found for what happened to the nominations of Enrique
Moreno and Jorge Rangel--both Latino, both Harvard graduates, both
highly rated by the ABA, and both denied hearings in the Judiciary
Committee? There is no denying that was the rule during the previous
Democratic administration. There is no way around the conclusion that
with a Republican in the White House, the Republicans in the Senate
have found it politically expedient to change the rules and reverse
their own practices time and again.
In all, more than 60 of President Clinton's judicial nominees and
more than 200 of his executive branch nominees were defeated in Senate
committees through the enforcement of rules and precedents that the
Republican majority later found inconvenient--now that there is a
Republican in the White House. Indeed, among the more than 60 Clinton
judicial nominees who the committee never considered there were more
than a few who were blocked despite positive blue slips from both home
State Senators. So long as a Republican Senator had an objection, it
appeared to be honored, whether that was Senator Helms of North
Carolina objecting to an African-American nominee from Virginia or
Senator Gorton of Washington objecting to nominees from California.
During the last Congress, the Judiciary Committee also took the
unprecedented action of proceeding to a hearing on the nomination of
Carolyn Kuhl to the Ninth Circuit over the objection of Senator Boxer.
When the senior Senator from California announced her opposition to the
nomination as well at the beginning of a Judiciary Committee business
meeting, I suggested to the chairman that further proceedings on that
nomination ought to be carefully considered. I noted that he had never
proceeded on a nomination opposed by both home State Senators once
their opposition was known. Senator Feinstein likewise reminded the
then-chairman of his statements in connection with the nomination of
Ronnie White when he acknowledged that had he known both home Sstate
Senators were opposed, he would never have proceeded. Nonetheless, in
one in a continuing series of changes of practice and position, the
committee was required to proceed with the Kuhl nomination. A party-
line vote was the result.
With the Saad nomination, the committee made a further profound
change in its practices. When a Democratic President was doing the
nominating and Republican Senators were objecting, a single objection
from a single home State Senator stalled the nomination. There was not
a single example of a single time that the committee went forward with
a hearing over the objection or negative blue slip of a single
Republican home State Senator during the Clinton administration. But
once a Republican President was doing the nominating, no amount of
objecting by Democratic Senators was sufficient. The committee overrode
the objection of one home State Senator with the Kuhl nomination. The
committee overrode the objection of both home State Senators when a
hearing and a vote was held on the Saad nomination, and once more by
holding a hearing and vote for the two circuit court nominees we are
discussing today.
I know it is frustrating that there have been unfilled vacancies on
the Sixth Circuit for so long. Many of us experienced worse frustration
during the Clinton years when good nominees were held up for no
discernable reason--other than politics. During President Clinton's
second term, the Republican Senate majority shut down the process of
confirmations to the Sixth Circuit entirely, and three outstanding
nominees were not accorded hearings, committee consideration or Senate
votes. In fact, while there were numbers of vacancies on the Sixth
Circuit and nominees for those vacancies, from November of 1997 there
was not a confirmation to that court until the confirmation of Julia
Smith Gibbons while I was chairman on July 29, 2002, a span of nearly 5
years. Not a single Sixth Circuit nominee was even given a hearing
during Republican control of the 106th Congress, and one of the
nominees, Kent Marcus from Ohio, testified at a Judiciary subcommittee
hearing in 2002 that he was told that he would not be confirmed despite
public support from his home State Senators. Republicans wanted to keep
the vacancies in
[[Page S6288]]
case a Republican was elected President.
When I chaired the committee, we broke that impasse with the first
Sixth Circuit confirmation in those many years. I scheduled a hearing
and a vote for Julia Smith Gibbons of Tennessee, who was confirmed
shortly thereafter, and I did the same for John Rogers of Kentucky, who
was confirmed in November of 2002.
I know that around the time a Republican leadership staffer was found
to have stolen confidential Democratic files there were outrageous
accusations made that Judge Gibbons' confirmation was delayed to affect
a pending affirmative action case in some way. I have never considered
the outcome of any particular case when scheduling that or any other
nominee for a hearing.
The facts of this nomination belie this scurrilous accusation. Judge
Gibbons was nominated to the Sixth Circuit in October 2001 but did not
have a completed file until November 15, shortly before the end of the
first session of the 107th Congress. Before her paperwork was complete,
the Sixth Circuit panel assigned to the affirmative action cases had
already circulated a request for the full court to hear argument, and
on November 16, the Sixth Circuit ordered that the case to be argued to
the full court. The oral argument in that case took place after
Thanksgiving, on December 6.
Given the lateness of her nomination, her paperwork, and the year,
Gibbons could not realistically have expected a hearing, a committee
vote and a confirmation vote to all have taken place in the 3 weeks
between the time her paperwork was complete and the time the Sixth
Circuit sat for the oral argument in that case and took a poll about
the outcome of that case. The ordinary practice is that only the judges
who are on the court at the time the court votes to hear the case ``en
banc'' can participate in the case, even if they retire. It is just
unreasonable to contend that Judge Gibbons could have heard the
December 6 argument in that case.
When we returned for the second session of the 107th Congress, I
scheduled several hearings at the request of a number of different
Republican Senators. The first circuit court nominee to get a hearing
was Michael Melloy for the Eighth Circuit at Senator Grassley's
request; followed by Judge Pickering, who was supported by Senator
Lott; then Judge D. Brooks Smith, for the Third Circuit, at Senator
Specter's request; then Terrence O'Brien, for the Eighth Circuit, at
the request of Senators Thomas and Enzi; and Jeffrey Howard, for the
First Circuit, who was supported by Senator Bob Smith.
Once those hearings were completed, in the week of April 15, I
scheduled a hearing for Judge Gibbons. Her hearing was held on April
25. I listed her for a committee vote the very next week, and all of
the Democratic Senators joined in voting her out the same day, May 2.
She did not get an immediate floor vote due to a dispute between the
White House and Senators over commissions, but she was ultimately
confirmed on July 29, 2002.
The Sixth Circuit issued its decision in the Michigan affirmative
action case on May 14, 2002, which means the judges were already
working on the majority and dissenting opinions for weeks, likely even
months, given the complexity of the case. The Supreme Court, where I
think we all knew the issue would finally be decided, accepted the
appeal of the affirmative action decision later that year and issued
its ruling on June 23, 2003.
To say that Democrats used their power to influence the Sixth Circuit
in any case is demonstrably false. What is factually true is that from
the time the case against the University of Michigan case was filed in
District Court until the time I facilitated the confirmation of Judge
Gibbons, Republicans had successfully blocked any and all appointees to
that Circuit.
Even after the 107th Congress, Democrats continued to cooperate in
filling seats on the Sixth Circuit. Although many of us strongly
opposed their nominations, we did not block the confirmations of two
more controversial judges to that court: Deborah Cook and Jeffrey
Sutton. With their confirmations, that brought us to a total of four
Sixth Circuit confirmations in 3 years as opposed to no confirmation in
the last 3 years of the Clinton administration. We cut Sixth Circuit
vacancies in half. With cooperation from the White House, we could have
done even better.
The Republican Senate majority refused for over 4 years to consider
President Clinton's well-qualified nominee, Helene White, to the Sixth
Circuit. Judge White has served on the Michigan Court of Appeals with
Judge Griffin since 1993, and, prior to her successful election to that
seat, served for nearly 10 years as a trial judge, handling a wide
range of civil and criminal cases. She was first nominated by President
Clinton in January 1997, but the Republican-led Senate refused to act
on her nomination. She waited in vain for 1,454 days for a hearing,
before President Bush withdrew her nomination in March 2001. It stands
in contrast to the recent mantra from Republicans that every judicial
nominee is entitled to an up-or-down vote.
President Clinton had also nominated Kathleen McCree Lewis. She is
the daughter of a former Solicitor General of the United States and a
former Sixth Circuit Judge. She was also passed over for hearings for
years. No effort was made to accord her consideration in the last 18
months of President Clinton's term. The Republican double standard
denied her the treatment they now demand for every Bush nominee.
Despite the flawed process that brought us here, the Michigan
Senators understood that in recent weeks we found ourselves on the
brink of a terrible moment in the United States Senate when the
majority leader would break the rules to change the rules in order to
achieve the President's goal of packing the courts. They understood the
extreme tactics of the Republican majority. I applaud their sacrifice,
and hope that the President was listening to the 14 other Senators who
expressly asked him in their memorandum of understanding on nominations
to engage in real consultation with home State Senators. That is sound
advice.
In deference to the Michigan Senators, I will no longer oppose these
confirmations. Still, there are issues related to their records and
views that trouble me. I hope that they will be able to put any
ideologies or preconceptions aside and rule fairly in all cases.
As a judge on the Michigan Court of Appeals since 1989, Judge Griffin
has handled and written hundreds of opinions involving a range of civil
and criminal law issues. Yet, a review of Judge Griffin's cases on the
Michigan Court of Appeals raises concerns. He has not been shy about
interjecting his own personal views into some of his opinions,
indicating that he may use the opportunity, once confirmed, to further
his own agenda when confronted with cases of first impression.
For example, in one troubling case involving the Americans with
Disabilities Act--ADA--Doe v. Mich. Dep't of Corrections, Judge Griffin
followed precedent and allowed the State disability claim of disabled
prisoners to proceed, but wrote that, if precedent had allowed, he
would have dismissed those claims. Griffin authored the opinion in this
class action brought by current and former prisoners who alleged that
the Michigan Department of Corrections denied them certain benefits on
the basis of their HIV-positive status. Although Judge Griffin held
that the plaintiffs had stated a claim for relief, his opinion makes
clear that he only ruled this way because he was bound to follow the
precedent established in a recent case decided by his Court. Moreover,
he went on to urge Congress to invalidate a unanimous Supreme Court
decision, written by Justice Scalia, holding that the ADA applies to
State prisoners and prisons. He wrote, ``While we follow Yeskey, we
urge Congress to amend the ADA to exclude prisoners from the class of
persons entitled to protection under the act.''
In other cases, he has also articulated personal preferences that
favor a narrow reading of the law, which would limit individual rights
and protections. For example, in Wohlert Special Products v. Mich.
Employment Security Comm'n, he reversed the decision of the Michigan
Employment Security Commission and held that striking employees were
not entitled to unemployment benefits. The Michigan Supreme Court
vacated part of Judge Griffin's decision, noting that he had
inappropriately made his own findings of fact
[[Page S6289]]
when ruling that the employees were not entitled to benefits. This case
raises concerns about Judge Griffin's willingness to distort precedent
to reach the results he favors.
In several other cases, Judge Griffin has gone out of his way to
interject his conservative personal views into his opinions. The
appeals courts are the courts of last resort in over 99 percent of all
federal cases and often decide cases of first impression. If confirmed,
Judge Griffin will have much greater latitude to be a conservative
judicial activist.
It is ironic that Judge Griffin's father who, as Senator in 1968,
launched the first filibuster of a Supreme Court nominee and blocked
the nomination of Justice Abe Fortas to serve as Chief Justice. Despite
the deference given in those days to the President's selected nominee,
former Senator Griffin led a core group of Republican Senators in
derailing President Johnson's nomination by filibustering for days.
Eventually, Justice Fortas withdrew his nomination. I know that the
Republicans here have called filibusters of Federal judges
``unconstitutional'' and ``unprecedented'', but this nominee's father
actually set the modern precedent for blocking nominees by filibuster
on the Senate floor.
The second of the two nominees before us today is David McKeague. His
record raises some concerns, and his answers to my written questions on
some of these issues did little or nothing to assuage them.
In particular, I am concerned about Judge McKeague's decisions in a
series of cases on environmental issues. In Northwoods Wilderness
Recovery v. United States Forest Serv., 323 F.3d 405 (6th Cir. 2003),
Judge McKeague would have allowed the U.S. Forest Service to commence a
harvesting project that allowed selective logging and clear-cutting in
areas of Michigan's upper peninsula. The appellate court reversed him
and found that the Forest Service had not adhered to a ``statutorily
mandated environmental analysis'' prior to approval of the project,
which was dubbed ``Rolling Thunder.''
Sitting by designation on the Sixth Circuit, Judge McKeague joined in
an opinion that permitted the Tennessee Valley Authority--TVA--broadly
to interpret a clause of the National Environmental Policy Act in a way
that would allow the TVA to conduct large-scale timber harvesting
operations without performing site-specific environmental assessments.
This is the case of Help Alert Western Ky., Inc. v. Tenn. Valley
Authority, 1999 U.S. App. LEXIS 23759 (6th Cir. 1999). The majority
decision in this case permitted the TVA to determine that logging
operations that covered 2,147 acres of land were ``minor,'' and thus
fell under a categorical exclusion to the environmental impact
statement requirement. The dissent in this case noted that the
exclusion in the past had applied only to truly ``minor'' activities,
such as the purchase or lease of transmission lines, construction of
visitor reception centers and onsite research.
Judge McKeague also dismissed a suit brought by the Michigan Natural
Resources Commission against the Manufacturer's National Bank of
Detroit, finding that the bank was not liable for the costs of
environmental cleanup at sites owned by a ``troubled borrower.'' This
is the case of Kelley ex rel. Mich. Natural Resources Comm'n v.
Tiscornia, 810 F. Supp. 901 (W.D. Mich. 1993). The bank took over the
property from Auto Specialties Manufacturing Company when it defaulted
on its loans. The Natural Resources Commission argued that the bank
should be responsible for taking over the cost of cleanup because it
held the property when the toxic spill occurred, but Judge McKeague
disagreed.
In Miron v. Menominee County, 795 F. Supp. 840 (W.D. Mich. 1992),
Judge McKeague rejected the efforts of a citizen who lived close to a
landfill to require the Federal Aviation Administration to enjoin
landfill cleanup efforts until an environmental impact statement
regarding the efforts could be prepared. The citizen contended that if
the statement were prepared, the inadequacies of a State-sponsored
cleanup would be revealed and appropriate corrective measures would be
undertaken to minimize further environmental contamination and wetlands
destruction. Holding that the alleged environmental injuries were
``remote and speculative,'' Judge McKeague denied the requested
injunctive relief.
In Pape v. U.S. Army Corps of Engineers, 1998 U.S. Dist. LEXIS 9253
(W.D. Mich.), Judge McKeague seems to have ignored relevant facts in
order to prevent citizen enforcement of environmental protections. Dale
Pape, a private citizen and wildlife photographer, sued the U.S. Corps
of Army Engineers under the Federal Resource Conservation and Recovery
Act of 1976 (RCRA), alleging that the Corps mishandled hazardous waste
in violation of RCRA, destroying wildlife in a park near the site.
Despite the Supreme Court's holding in Lujan v. Defenders of Wildlife
that ``the desire to use or observe an animal species, even for purely
esthetic purposes, is undeniably a cognizable interest for purpose of
standing,'' and even though RCRA specifically conferred the right for
citizen suits against the government for failure to implement orders or
to protect the environment or health and safety, Judge McKeague
dismissed the case, holding that plaintiff lacked standing to sue.
Judge McKeague found plaintiff's complaint insufficient on several
grounds, in particular plaintiff's inability to establish which site
specifically he would visit in the future. Plaintiff had stated in his
complaint that he ``has visited the `area around' the RACO site `at
least five times per year' and that he has made plans to vacation in
`Soldiers Park' located `near' the RACO site in early October 1998,
where he plans to spend his time `fishing, canoeing, and photographing
the area.' '' Comparing Pape's testimony with that of the Lujan
plaintiff, who had failed to win standing after he presented general
facts about prior visits and an intent to visit in the future, Judge
McKeague rejected Pape's complaint as too speculative, based on the
Court's holding in Lujan that:
[Plaintiffs'] profession of an ``intent'' to return to the
places [plaintiffs] had visited before--where they will,
presumably, this time, be deprived of the opportunity to
observe animals of the endangered species--is simply not
enough to establish standing . . .. Such ``some day''
intention-- without any description of concrete plans, or
indeed, even any specification of when the some day will be--
do not support a finding of the ``actual or imminent'' injury
that our cases require.
In concluding that ``the allegations contained in plaintiff's first
amended complaint fail to establish an actual injury because they do
not include an allegation that plaintiff has specific plans to use the
allegedly affected area in the future,'' Judge McKeague seemed to
ignore completely the detailed fact description that Pape submitted in
his amendment complaint. The judge further asserted that there was no
causal connection between the injury and the activity complained of,
and that, in any case, the alleged injury was not redressable by the
suit.
On another important topic, that of the scheme of enforcing the civil
and constitutional rights of institutionalized persons, I am concerned
about one of Judge McKeague's decisions. In 1994, in United States v.
Michigan, 868 F. Supp. 890 (W.D. Mi. 1994), he refused to allow the
Department of Justice access to Michigan prisons in the course of its
investigation into some now notorious claims of sexual abuse of women
prisoners by guards undermines the long-established system under the
Constitutional Rights of Institutionalized Persons Act or CRIPA. That
act's investigative and enforcement regime is unworkable if the
Department of Justice is denied access to State prisons to determine if
enough evidence exists to file suit, and Judge McKeague's tortured
reasoning made it impossible for the investigation to continue in his
district.
I know that concern for the rights of prisoners who have often
committed horrendous criminal acts is not politically popular, but
Congress enacted the law and expected its statute and its clear intent
to be followed. It seems to me that Judge McKeague disregarded
legislative history and the clear intent of the law, and that sort of
judging is of concern to me.
Finally, I must express my profound disappointment in his answer to a
question I sent him about a presentation he made in the Fall of 2000,
when he made what I judged to be inappropriate and insensitive comments
about the health and well-being of sitting Supreme Court Justices. In a
speech to a law school audience about the impact of the 2000 elections
on the
[[Page S6290]]
courts, Judge McKeague discussed the possibility of vacancies on the
Court over the following year. In doing so he felt it necessary to not
only refer to--but to make a chart of--the Justices' particular health
problems, and ghoulishly focus on their life expectancy by highlighting
their ages. He says he does not believe he was disrespectful, and used
only public information. There were other, better ways he could have
made the same point, and it is too bad he still cannot see that.
Under our Constitution, the Senate has an important role in the
selection of our judiciary. The brilliant design of our Founders
established that the first two branches of Government would work
together to equip the third branch to serve as an independent arbiter
of justice. As columnist George Will once wrote: ``A proper
constitution distributes power among legislative, executive and
judicial institutions so that the will of the majority can be measured,
expressed in policy and, for the protection of minorities, somewhat
limited.'' The structure of our Constitution and our own Senate rules
of self-governance are designed to protect minority rights and to
encourage consensus. Despite the razor-thin margin of recent elections,
the majority party has never acted in a measured way but in complete
disregard for the traditions of bipartisanship that are the hallmark of
the Senate. It acted to ignore precedents and reinterpret longstanding
rules to its advantage, but fortunately its attempt to eliminate the
voice of the minority entirely failed because of the efforts of well-
meaning and fair-minded Senators. Two more well-meaning and fair-minded
Senators did their part to save the Senate by clearing the way for the
confirmation of the two nominees today. I hope that despite the
concerns I have expressed and others that may emerge during this
debate, once confirmed Judge Griffin and Judge McKeague will fulfill
their oath and provide fair and impartial justice to all who come
before them.
Mr. McCONNELL. Mr. President, I rise in support of the nominations of
David McKeague and Richard Griffin to the Sixth Circuit Court of
Appeals.
The Sixth Circuit covers thirty million people in Michigan, Ohio,
Tennessee and my home State of Kentucky. For the last several years,
the Sixth Circuit has been operating with at least one-fourth of its 16
seats empty. This 25 percent vacancy rate is the highest vacancy rate
among Federal circuit courts. The Administrative Office of the Courts
has declared all four of these empty seats to be ``judicial
emergencies.''
Because of this high vacancy rate, the Sixth Circuit has been
operating under a crushing caseload burden and has been the slowest
circuit in the Nation. According to the AOC, last year--like the year
before it--the Sixth Circuit was a full 60 percent behind the national
average. In 2004, the national average for disposing of an appeal in
the Federal circuit courts was 10.5 months. But in the Sixth Circuit,
it took almost 17 months to decide an appeal. For your average
litigant, that means 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 year later.
Mr. President, you know the old saying that ``justice delayed is
justice denied.'' Well, the thirty million residents of the Sixth
Circuit have been denied justice due to the continued obstruction of
Michigan nominees by my Democrat colleagues. What is the reason for
this sorry state of affairs? An intra-delegation spat in the Michigan
delegation from years ago--when a quarter of the current Senate was not
even here. Nor, I might add, was the current President around either.
This dispute has dragged on year after year. I do not know who started
it.
My colleagues from Michigan cite Clinton nominees to the Sixth
Circuit who did not receive hearings. Other people note that our
colleagues from Michigan do not have a monopoly on disappointment. They
point to Michigan nominees from President George Herbert Walker Bush,
such as Henry Saad and John Smietanka, who did not get hearings when
Democrats controlled the Senate Judiciary Committee in the early 1990s.
Regardless of who started what and when, all the residents in the
Sixth Circuit have been suffering from the refusal of our Democratic
colleagues to allow these seats from Michigan to be filled. Moreover,
this obstruction has been out of all proportion to any alleged
grievance. Specifically, our colleagues had been blocking four circuit
court nominees from Michigan, as well as three district court nominees
from Michigan. But of these seven Michigan vacancies that the Democrats
had been refusing to let the Senate fill, five of the seats were not
even involved in this dispute. President Clinton never nominated anyone
to the seat to which current nominee Henry Saad has been nominated. The
seat to which current nominee David McKeague has been nominated did not
even become vacant until the current Bush administration. And the three
district court seats that are being blocked were not involved in the
dispute either. So my friends from Michigan had been holding up one-
fourth of an entire circuit in crisis, along with three district court
seats, because of an internal dispute about two seats, the genesis of
which occurred years ago.
What had my friends from Michigan been demanding in order to lift
this blockade? They had wanted to pick circuit court appointments. Mr.
President, let us get back to first principles. As much as they would
like to, Democrat Senators do not get to pick circuit court judges in
Republican administrations. For that matter, Republican Senators do not
get to pick circuit court judges in Republican administrations.
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 that
the President has made. By tradition, the President may consult with
Senators. 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.
Fortunately, it appears our friends from Michigan have reconsidered
their position. As a result, two fine jurists, Judge Richard Griffin
and Judge David McKeague, will get up or down votes, and will be
confirmed to the Sixth Circuit Court of Appeals. All residents of the
Sixth Circuit will benefit from their service on that court. We should
all be thankful for that.
Mr. FRIST. Mr. President, before the recess, the Senate confirmed
Priscilla Owen to the Fifth Circuit Court of Appeals. Yesterday, we
confirmed Janice Rogers Brown to the DC Circuit. And earlier today,
William Pryor was confirmed to serve on the Eleventh Circuit Court of
Apeals.
All three of these judges had been waiting for years to get an up-or-
down vote on the Senate floor. Until 2 weeks ago, all three of these
nominees had been blocked by partisan obstructionist tactics.
In a few minutes, we will give Judge Richard Griffin and Judge David
McKeague fair up or down votes. We are making progress on fulfilling
our constitutional duty to advise and consent.
The judges before us now are nominees to the Sixth Circuit Court of
Appeals--a circuit which includes Michigan, Ohio, Kentucky, and my home
State of Tennessee. It is a circuit that desperately needs new judges.
My circuit--the Sixth Circuit--has the highest vacancy rate and the
slowest appeals process in the Nation.
For the last 3 years, the Sixth Circuit has had the highest the
vacancy rate for Federal judges in the nation. Twenty five percent--4
out of 16--of its seats are empty. All four have been declared judicial
emergencies.
These vacant judgeships have turned the Sixth Circuit into the
slowest circuit in the country. Consider that the national average for
an appeal is about 10 months. In the Sixth Circuit, it takes almost 17.
This situation is unfair to our constituents and unfair to the hard-
working judges who labor under increasingly heavy caseloads.
Judicial obstruction has been delaying and denying justice to the 30
million people who live in the Sixth Circuit. It is time to end this
judicial obstruction and fill these seats with qualified judges.
I would like to comment briefly on the backgrounds of Judges McKeague
and Griffin.
[[Page S6291]]
The President nominated Judge McKeague on November 8, 2001, and Judge
Griffin on June 26, 2002.
Judge Griffin has extensive experience as a practicing attorney. He
has appeared before the Federal district courts in Michigan and before
the Sixth Circuit Court of Appeals.
He also has served with distinction as a State court judge for well
over a decade. As an appellate judge, he wrote over 280 published
opinions and heard thousands of criminal and civil cases.
He enjoys bipartisan support from his colleagues. The chief judge of
the Michigan Court of Appeals has called Judge Griffin a ``decisive
scholarly judge with an instinct for the core issues and with a flair
for authoring crisp understandable opinions.''
Judge Griffin has been waiting nearly 3 years for a fair up or down
vote. It is time to give him that courtesy. It is time to vote.
Judge David McKeague, likewise, is a highly regarded jurist. In 1992,
the Senate voted unanimously to confirm him to serve on the U.S.
District Court for the Western District of Michigan.
Many of those same Senators who confirmed Judge McKeague to the
district court have been obstructing his nomination to the appellate
court for over 3 years.
Judge McKeague was also appointed by Supreme Court Chief Justice
Rehnquist to serve on the Judicial Conference's Committee on Defender
Services and on the Federal Judicial Center's District Judges Education
Committee, which he chairs.
Those in the legal community who have worked with Judge McKeague
respect him. One fellow attorney called him ``a person of unquestioned
honor and integrity. Judge McKeague's judgments are sound, impartial,
and prompt.''
Attorneys who have represented clients before Judge McKeague say that
he is fair and ``treats all litigants and litigators with courtesy and
respect'' and that ``his rulings are well reasoned with due regard for
precedent and the law.''
Judge McKeague has been waiting nearly 4 years for an up-or-down
vote. It is time to give him that courtesy. It is time to vote.
Judges Griffin and McKeague are highly qualified individuals with
extensive legal experience and bipartisan support. Both have been rated
``well qualified'' by the American Bar Association, the highest rating
possible.
It is only because of partisan obstruction that they have not
received a fair vote. Justice has been delayed because an up-or-down
vote has been denied.
I hope things are changing in the Senate. I am pleased that with
today's votes the Senate is continuing to move forward to embrace the
principle of fair up or down votes on judicial nominees.
I urge my colleagues to join me to vote to confirm Judge Griffin and
Judge McKeague to the Federal appeals court.
Mr. President, for the information of our colleagues, we plan on
beginning the votes--there will be two votes--in about 5 minutes. I
know a number of people are in meetings and around the Hill, but I want
to notify them that we will begin voting at 4:55, in about 5 minutes.
Mr. LEAHY. Mr. President, with the leader on the floor, have the yeas
and nays been ordered on these two nominees?
The PRESIDING OFFICER. They have not.
Mr. LEAHY. Mr. President, I ask unanimous consent that it be in order
at this time to ask for the yeas and nays on both nominations.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
Mr. LEAHY. Mr. President, I know the two Senators from Michigan
support both these nominees. They both returned positive blue slips,
which is one of the reasons they are moving so quickly.
As to when the time arrives that the leader wishes to begin the
votes, I ask unanimous consent that at that time the time on this side
of the aisle be yielded back, whether I am on the floor or not.
Mr. FRIST. No objection.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. FRIST. Mr. President, I understand that all time will have been
yielded back and, therefore, we will be starting the vote at 4:55
sharp.
I 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. SPECTER. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SPECTER. Mr. President, I know our colleagues are anxious to
vote. I have put into the Record statements in support of the
nominations of Richard Allen Griffin to be a judge on the Sixth Circuit
Court of Appeals and David W. McKeague to be, similarly, a judge on the
Sixth Circuit. It would have been gratifying a couple of years ago to
have had this confirmation at that time, but it is good to have it now
rather than at some time in the future. It would not serve any useful
purpose to go through the litany of reasons these nominees have been
held up. Suffice it to say, they are very well qualified, and the Sixth
Circuit is in a state of crisis, and it will help the administration of
justice to have these nominees confirmed.
Mr. President, I believe we are ready to vote.
vote on nomination of richard a. griffin
The PRESIDING OFFICER. The question is, Will the Senate advise and
consent to the nomination of Richard A. Griffin, of Michigan, to be
United States Circuit Judge for the Sixth Circuit? The yeas and nays
have been ordered. The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. McCONNELL. The following Senators were necessarily absent: the
Senator from Tennessee (Mr. Alexander) and the Senator from Alaska (Ms.
Murkowski).
Further, if present and voting, the Senator from Tennessee (Mr.
Alexander) would have voted ``yea.''
Mr. DURBIN. I announce that the Senator from Delaware (Mr. Biden),
the Senator from Vermont (Mr. Jeffords), and the Senator from Illinois
(Mr. Obama) are necessarily absent.
I further announce that, if present and voting, the Senator from
Delaware (Mr. Biden) would vote ``yea.''
The PRESIDING OFFICER (Mr. Coleman). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 95, nays 0, as follows:
[Rollcall Vote No. 134 Ex.]
YEAS--95
Akaka
Allard
Allen
Baucus
Bayh
Bennett
Bingaman
Bond
Boxer
Brownback
Bunning
Burns
Burr
Byrd
Cantwell
Carper
Chafee
Chambliss
Clinton
Coburn
Cochran
Coleman
Collins
Conrad
Cornyn
Corzine
Craig
Crapo
Dayton
DeMint
DeWine
Dodd
Dole
Domenici
Dorgan
Durbin
Ensign
Enzi
Feingold
Feinstein
Frist
Graham
Grassley
Gregg
Hagel
Harkin
Hatch
Hutchison
Inhofe
Inouye
Isakson
Johnson
Kennedy
Kerry
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lott
Lugar
Martinez
McCain
McConnell
Mikulski
Murray
Nelson (FL)
Nelson (NE)
Pryor
Reed
Reid
Roberts
Rockefeller
Salazar
Santorum
Sarbanes
Schumer
Sessions
Shelby
Smith
Snowe
Specter
Stabenow
Stevens
Sununu
Talent
Thomas
Thune
Vitter
Voinovich
Warner
Wyden
NOT VOTING--5
Alexander
Biden
Jeffords
Murkowski
Obama
The nomination was confirmed.
Vote on Nomination of David W. McKeague
The PRESIDING OFFICER. The question is, Will the Senate advise and
consent to the nomination of David W. McKeague, of Michigan, to be a
United States Circuit Judge for the Sixth Circuit? On this question,
the yeas and nays have been ordered. The clerk will call the roll.
The legislative clerk called the roll.
Mr. McCONNELL. The following Senators were necessarily absent: the
Senator from Tennessee (Mr. Alexander), and the Senator from Alaska
(Ms. Murkowski).
[[Page S6292]]
Further, if present and voting, the Senator from Tennessee (Mr.
Alexander) would have voted ``yea.''
Mr. DURBIN. I announce that the Senator from Delaware (Mr. Biden),
and the Senator from Vermont (Mr. Jeffords), are necessarily absent.
I further announce that if present and voting, the Senator from
Delaware (Mr. Biden) would vote ``yea.''
The PRESIDING OFFICER (Mr. Chafee). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 96, nays 0, as follows:
[Rollcall Vote No. 135 Ex.]
YEAS--96
Akaka
Allard
Allen
Baucus
Bayh
Bennett
Bingaman
Bond
Boxer
Brownback
Bunning
Burns
Burr
Byrd
Cantwell
Carper
Chafee
Chambliss
Clinton
Coburn
Cochran
Coleman
Collins
Conrad
Cornyn
Corzine
Craig
Crapo
Dayton
DeMint
DeWine
Dodd
Dole
Domenici
Dorgan
Durbin
Ensign
Enzi
Feingold
Feinstein
Frist
Graham
Grassley
Gregg
Hagel
Harkin
Hatch
Hutchison
Inhofe
Inouye
Isakson
Johnson
Kennedy
Kerry
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lott
Lugar
Martinez
McCain
McConnell
Mikulski
Murray
Nelson (FL)
Nelson (NE)
Obama
Pryor
Reed
Reid
Roberts
Rockefeller
Salazar
Santorum
Sarbanes
Schumer
Sessions
Shelby
Smith
Snowe
Specter
Stabenow
Stevens
Sununu
Talent
Thomas
Thune
Vitter
Voinovich
Warner
Wyden
NOT VOTING--4
Alexander
Biden
Jeffords
Murkowski
The nomination was confirmed.
The PRESIDING OFFICER. The President will be immediately notified of
the Senate's action.
The majority leader.
____________________