[Congressional Record (Bound Edition), Volume 148 (2002), Part 17]
[Senate]
[Pages 22885-22887]
[From the U.S. Government Publishing Office, www.gpo.gov]




                      CONFIRMATION OF JOHN ROGERS

  Mr. LEAHY. Mr. President, last week the Senate voted to confirm the 
nomination of John Rogers who is nominated to the U.S. Court of Appeals 
for the Sixth Circuit. By confirming this nomination, we are trying to 
move forward in providing help to the Sixth Circuit. Earlier this year, 
we held a hearing for Judge Julia Gibbons to a seat on the Sixth 
Circuit, who was confirmed by the Senate on July 29, 2002 by a vote of 
95 to 0. With last night's vote, the Democratic-led Senate confirmed 
the 15th judge to our federal Courts of Appeal and our 98th judicial 
nominee since the change in Senate majority in July 2001. I have placed 
a separate statement in the Record on the occasion of confirming that 
many of this President's judicial nominees in just 16 months.
  Republicans often say that almost half of the seats on the Sixth 
Circuit are vacant but what they fail to acknowledge is that most of 
those vacancies arose during the Clinton administration and before the 
change in majority last summer. None, zero, not one of the Clinton 
nominees to those current vacancies on the Sixth Circuit received a 
hearing by the Judiciary Committee under Republican leadership. With 
the confirmation of Professor Rogers, we have reduced the number of 
vacancies on that court to six, but four of those remaining lack home-
State consent due to the President's failure to address the legitimate 
concerns of Senators in that circuit whose nominees were blocked by 
Republicans during the period of Republican control of the Senate.
  The Sixth Circuit vacancies are a prime and unfortunate legacy of the 
past partisan obstructionist practices under Republican leadership. 
Vacancies on the Sixth Circuit were perpetuated during the last several 
years of the Clinton administration when the Republican majority 
refused to hold hearings on the nominations of Judge Helene White, 
Kathleen McCree Lewis and Professor Kent Markus to vacancies in the 
Sixth Circuit.
  One of those seats has been vacant since 1995, the first term of 
President Clinton. Judge Helene White of the Michigan Court of Appeals 
was nominated in January 1997 and did not receive a hearing on her 
nomination during the more than 1,500 days before her nomination was 
withdrawn by President Bush in March of last year. Judge White's 
nomination may have set an unfortunate record.
  Her nomination was pending without a hearing for over four years--51 
months. She was first nominated in January 1997 and renominated and 
renominated through March of last year when President Bush chose to 
withdraw her nomination. Under Republican control, the Committee 
averaged hearings on only about eight Courts of Appeals nominees a year 
and, in 2000, held only five hearings on Courts of Appeals nominees all 
year.
  In contrast, Professor Rogers was the fifteenth Court of Appeals 
nominee of President Bush to receive a hearing by the Committee in less 
than a year since the reorganization of the Senate Judiciary Committee. 
In 16 months we held hearings on 20 circuit court nominations. 
Professor Rogers was being treated much better than Kathleen McCree 
Lewis, a distinguished African American lawyer from a prestigious 
Michigan law firm. She never had a hearing on her 1999 nomination to 
the Sixth Circuit during the years it was pending before it was 
withdrawn by President Bush in March 2001.
  Professor Kent Markus, another outstanding nominee to a vacancy on 
the Sixth Circuit that arose in 1999, never received a hearing on his 
nomination before his nomination was returned to President Clinton 
without action in December 2000. While Professor Markus' nomination was 
pending, his confirmation was supported by individuals of every 
political stripe, including 14 past presidents of the Ohio State Bar 
Association and more than 80 Ohio law school deans and professors.
  Others who supported Professor Markus include prominent Ohio 
Republicans, including Ohio Supreme Court Chief Justice Thomas Moyer, 
Ohio Supreme Court Justice Evelyn Stratton, Congresswoman Deborah 
Pryce, and Congressman David Hobson, the National District Attorneys 
Association, and virtually every major newspaper in the state.
  In his testimony to the Senate in May, Professor Markus summarized 
his experience as a Federal judicial nominee, demonstrating how the 
``history regarding the current vacancy backlog is being obscured by 
some.'' Here are some of things he said:

       On February 9, 2000, I was the President's first judicial 
     nominee in that calendar year. And then the waiting began. . 
     . .
       At the time my nomination was pending, despite lower 
     vacancy rates than the 6th Circuit, in calendar year 2000, 
     the Senate confirmed circuit nominees to the 3rd, 9th and 
     Federal Circuits. . . . No 6th circuit nominee had been 
     afforded a hearing in the prior two years. Of the nominees 
     awaiting a Judiciary Committee hearing, there was no circuit 
     with more nominees than the 6th Circuit.
       With high vacancies already impacting the 6th Circuit's 
     performance, and more vacancies on the way, why, then, did my 
     nomination expire without even a hearing? To their

[[Page 22886]]

     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[.] 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--see item number 1. . . .
       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.

  As Professor Markus identified, some on the other side of the aisle 
held these seats open for years for another President to fill, instead 
of proceeding fairly on the consensus nominees pending before the 
Senate. Some were unwilling to move forward, knowing that retirements 
and attrition would create four additional seats that would arise 
naturally for the next President. That is why there are now so many 
vacancies on the Sixth Circuit.
  Had Republicans not blocked President Clinton's nominees to this 
court, if the three Democratic nominees had been confirmed and 
President Bush appointed the judges to the other vacancies on the Sixth 
Circuit, that court would be almost evenly balanced between judges 
appointed by Republicans and Democrats. That is what Republican 
obstruction was designed to avoid, balance. The same is true of a 
number of other circuits, with Republicans benefitting from their 
obstructionist practices of the preceding six and a half years. This 
combined with President Bush's refusal to consult with Democratic 
Senators about these matters is particularly troubling.
  Long before some of the recent voices of concern were raised about 
the vacancies on that court, Democratic Senators in 1997, 1998, 1999, 
and 2000 implored the Republican majority to give the Sixth Circuit 
nominees hearings. Those requests, made not just for the sake of the 
nominees but for the sake of the public's business before the court, 
were ignored. Numerous articles and editorials urged the Republican 
leadership to act on those nominations.
  Fourteen former presidents of the Michigan State Bar pleaded for 
hearings on those nominations. The former Chief Judge of the Sixth 
Circuit, Judge Gilbert Merritt, wrote to the Judiciary Committee 
Chairman years ago to ask that the nominees get hearings and that the 
vacancies be filled. The Chief Judge noted that, with four vacancies, 
the four vacancies that arose in the Clinton Administration, the Sixth 
Circuit ``is hurting badly and will not be able to keep up with its 
work load due to the fact that the Senate Judiciary Committee has acted 
on none of the nominations to our Court.'' He predicted: ``By the time 
the next President in inaugurated, there will be six vacancies on the 
Court of Appeals. Almost half of the Court will be vacant and will 
remain so for most of 2001 due to the exigencies of the nomination 
process. Although the President has nominated candidates, the Senate 
has refused to take a vote on any of them.''
  However, no Sixth Circuit hearings were held in the last three full 
years of the Clinton Administration (almost his entire second 
presidential term), despite these pleas. Not one. Since the shift in 
majority last summer, the situation has been exacerbated further as two 
additional vacancies have arisen.
  The Committee's April 25th hearing on the nomination of Judge Gibbons 
to the Sixth Circuit was the first hearing on a Sixth Circuit 
nomination in almost five years, even though three outstanding, fair-
minded individuals were nominated to the Sixth Circuit by President 
Clinton and pending before the Committee for anywhere from one year to 
over four years. Judge Gibbons was confirmed by the Senate on July 29, 
2002, by a vote of 95 to 0. We did not stop there, but proceeded to 
hold a hearing on a second Sixth Circuit nominee, Professor Rogers, 
just a few short months later in June.
  Just as we held the first hearing on a Sixth Circuit nominee in many 
years, the hearing we held on the nomination of Judge Edith Clement to 
the Fifth Circuit last year was the first on a Fifth Circuit nominee in 
seven years and she was the first new appellate judge confirmed to that 
Court in six years.
  When we held a hearing on the nomination of Judge Harris Hartz to the 
Tenth Circuit last year, it was the first hearing on a Tenth Circuit 
nominee in six years and he was the first new appellate judge confirmed 
to that Court in six years. When we held the hearing on the nomination 
of Judge Roger Gregory to the Fourth Circuit last year, it was the 
first hearing on a Fourth Circuit nominee in three years and he was the 
first appellate judge confirmed to that court in three years.
  A number of vacancies continue to exist on many Courts of Appeals, in 
large measure because the recent Republican majority was not willing to 
hold hearings or vote on half--56 percent--of President Clinton's 
Courts of Appeals nominees in 1999 and 2000 and was not willing to 
confirm a single judge to the Courts of Appeals during the entire 1996 
session.
  From the time the Republicans took over the Senate in 1995 until the 
reorganization of the Committee last July, circuit vacancies increased 
from 16 to 33, more than doubling. Democrats have broken with that 
recent history of inaction. In the last 16 months, we have held 26 
judicial nomination hearings, including 20 hearings for circuit court 
nominees.
  Professor Rogers' nomination was also the fourth judicial nomination 
from Kentucky to be considered by the Committee in its first year, and 
the eighth nomination from Kentucky overall. There are no judicial 
vacancies left in the State.
  Professor Rogers of the University of Kentucky College of Law has 
experience as an appellate litigator and a teacher, and is a prolific 
author on a number of difficult legal topics. It is important to note 
that aspects of his record raise concerns. As a professor, he has been 
a strong proponent of judicial activism. No Clinton judicial nominee 
with such published views would ever have been confirmed during the 
period of Republican control. In his writings, Professor Rogers has 
called on lower court judges to reverse higher court precedents, if the 
lower court judge thinks the higher court will ultimately reverse its 
own precedent. Such an activist approach is inappropriate in the lower 
Federal courts. The Supreme Court itself has noted that lower courts 
should follow Supreme Court precedent and not anticipate future 
decisions in which the Supreme Court may exercise its prerogative to 
overrule itself.
  Prognostications about how the Supreme Court will rule often turns 
out to be wrong. For example, some predicted that the Supreme Court 
would overturn Miranda, but the Supreme Court, in an opinion by Chief 
Justice Rehnquist, declined to do so. Similarly, people like Professor 
Rogers have called on the Supreme Court to overturn Roe v. Wade, but 
thus far the Supreme Court has rejected calls to reverse itself in this 
important decision regarding the rights of women and has resisted calls 
to return this country to the awful period of dangerous back alley 
abortions.
  Professor Rogers also suggested in his academic writings that lower 
court judges should consider the political views of Justices in making 
the determination of when lower courts should overrule Supreme Court 
precedent. In his answers to the Committee, Professor Rogers 
acknowledged that he had taken that position but he now says that lower 
courts should not look to the views of Justices expressed in speeches 
or settings other than their opinions. Also, in his answers to the 
Committee, Professor Rogers said he would give great weight to Supreme 
Court dicta, or arguments that are not part of the holding of the case. 
I would like to take this opportunity to urge him to take seriously the 
obligation of a judge to follow precedent and the holdings of the 
Supreme Court, rather than to look to dicta for views that may support 
his own personal views. I would also urge him to resist acting on his 
academic notion that a judge should diverge from precedent when he 
anticipates that the Supreme Court may eventually do so.
  Professor Rogers has assured us that he would follow precedent and 
not

[[Page 22887]]

overrule higher courts, despite his clear advocacy of that position in 
his writings as a scholar. He has sworn under oath that he would not 
follow the approach that he long advocated. As with President Bush's 
Eighth Circuit nominee Lavenski Smith, who was confirmed earlier this 
summer, I am hopeful that Professor Rogers will be a person of his 
word: that he will follow the law and not seek out opportunities to 
overturn precedent or decide cases in accord with his private beliefs 
rather than his obligations as a judge.
  I would also note that during his tenure at the Justice Department, 
Professor Rogers appeared to support an expansive view of the power of 
the Executive Branch vis-a-vis Congress. I am hopeful, however, that 
Professor Rogers will recognize the important difference between being 
a zealous advocate for such positions and being a fair and impartial 
judge sworn to follow precedents and the law.
  When he was asked to describe any work he had handled which was not 
popular but was nevertheless important, he said that the case which 
came to mind was one in which he defended the CIA against a lawsuit 
seeking damages for the CIA's illegal opening of the private mail of 
tens of thousands of U.S. citizens during this 1970s or 1980s. Those 
were dark days of overreaching by the intelligence community against 
the rights of ordinary law-abiding American citizens. Although times 
have changed forever since the tragic events of September 11, I think 
it is important that the American people have access to judges who will 
uphold the Constitution against government excesses while also giving 
acts of Congress the presumption of constitutionality to which our laws 
are entitled by precedent.
  Professor Rogers has repeatedly assured the Committee, however, that 
he would follow precedent and not seek to overturn decisions affecting 
the privacy of women or any other decision of the Supreme Court. 
Senator McConnell has also personally assured me that Professor Rogers 
will not be an activist but is sincerely committed to following 
precedent if he is confirmed. I sincerely hope that his decisions on 
the Sixth Circuit do not prove us wrong.

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