[Congressional Record (Bound Edition), Volume 149 (2003), Part 13]
[Senate]
[Pages 18207-18212]
[From the U.S. Government Publishing Office, www.gpo.gov]




               STALLED NOMINATIONS FOR THE SIXTH CIRCUIT

  Mr. FRIST. Mr. President, I rise this morning to address a very 
specific situation--a dire situation--that exists in the administration 
of justice for the people of Tennessee, Kentucky, Ohio, and Michigan, 
the States that make up the Sixth Circuit Court of Appeals.
  I am joined this morning by other Senators from the Sixth Circuit 
and, most notably, we are joined on the Senate floor by many Members of 
the House of Representatives, representing the four States of the Sixth 
Circuit.
  This morning, we will be meeting with Michigan's attorney general, 
Mike Cox, and several other Michigan leaders. They flew down today to 
make their case in the Senate, encouraging us to do our job and move 
forward with the stalled Michigan nominations to the Sixth Circuit 
Court of Appeals. They will be presenting the Senate leadership with a 
petition of thousands of Michigan citizens asking the Senate to end 
this delay on the so-called Michigan four.
  This petition corresponds with a concurrent resolution which has been 
introduced in the Michigan Legislature, also asking the Senate to end 
the almost 2-year delay on the Michigan nominations.
  The people and leaders of Michigan are not just speaking for 
themselves; they speak for the people from all of the States concerned 
and affected by this inexcusable delay. That includes the people of 
Tennessee, Kentucky, as well as Ohio.
  That is why last week I took the rare, but not unprecedented, action 
of vowing for discharge of these four stalled nominations from the 
Judiciary Committee, because the delay of these nominations affects 
more than the State of Michigan, and the entire Sixth Circuit 
congressional delegation does have an interest on behalf of the people 
of the States and districts we represent.
  In response to my discharge motion, my colleague, the senior Senator 
from Illinois, objected on behalf of the two Senators from Michigan on 
the basis that the stalled Michigan nominations had not had a hearing.
  I thought at the time it was an odd objection given that the Senators 
from Michigan are the ones who are obstructing such hearings from even 
being held. Nevertheless, I respectfully considered the objection and 
studied the record of the Michigan nominations. This morning, I have 
sent a letter to Senator Hatch, chairman of the Judiciary Committee, 
along with Senator McConnell, who also signed and wrote this letter 
with me, asking them to hold hearings on these nominations as soon as 
possible.
  Mr. President, I ask unanimous consent that this letter be printed in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                Congress of the United States,

                                    Washington, DC, July 16, 2003.
     Hon. Orrin G. Hatch,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Chairman Hatch: As leaders of the majority and 
     senators who represent two of the four states that comprise 
     the Sixth Circuit, we are requesting that you hold hearings 
     on the nominations of Judges Henry W. Saad, Susan B. Neilson, 
     David W. McKeague, and Richard A. Griffin to the U.S. Court 
     of Appeals for the Sixth Circuit.
       On July 7, 2003, the Majority Leader filed resolutions to 
     discharge the Judiciary Committee from consideration of these 
     nominees. These measures would allow the full Senate to 
     consider their nominations, three of which have been pending 
     for nearly two years (the fourth has been pending more than 
     one year).
       We believe that the discharge resolutions are necessary 
     because the Michigan senators

[[Page 18208]]

     have returned negative blue slips in an effort to prevent you 
     from holding hearings on these nominees. Our understanding, 
     however, is that the Michigan senators' objection to these 
     nominees is based not on any substantive concerns about their 
     qualifications, integrity, or temperament. Indeed, these four 
     nominees are held in the highest regard and enjoy solid 
     reputations. Nor is it based on a failure of the White House 
     to properly consult with the Michigan senators. In fact, it 
     appears that the Administration has been extremely solicitous 
     of their views, having engaged in extensive consultation, as 
     that term is properly understood.
       Rather, based upon our review of the record of consultation 
     and correspondence, it appears that the Michigan Senators 
     object to consideration of these nominees for purposes 
     unrelated to their personal qualifications. Simply put, they 
     believe that two Clinton nominees from Michigan who were not 
     confirmed should be renominated by President Bush. Because 
     the White House has not taken the extraordinary step of 
     renominating these two Clinton nominees, the Michigan 
     Senators have decided to block all four of Michigan's circuit 
     court nominees (and both of its district court nominees as 
     well).
       This is not a valid reason to hold the entire Sixth Circuit 
     hostage and inflict damage and delay on our constitutes. This 
     situation is unacceptable and simply cannot continue. The 
     Michigan senators should not be able to prevent the entire 
     Senate from acting on four outstanding nominees who would 
     fill judicial emergencies on an appellate court that is 
     operating with fully one fourth of its seats vacant.
       There are many others, including numerous Michigan public 
     officials, who share this view. Nine members of the Michigan 
     congressional delegation wrote you on February 26, 2003, 
     asking you to provide hearings for the Sixth Circuit nominees 
     from Michigan as soon as reasonably practical. On July 3, 
     2003, the Michigan Senate introduced a resolution calling for 
     the United States Senate and Michigan's U.S. Senators to act 
     to begin the confirmation hearings on Michigan's Sixth 
     Circuit nominees.
       In response to the filing last week of the resolution to 
     discharge the Judiciary Committee from consideration of Judge 
     McKeague's nomination, Senator Durbin stated, ``. . . [T]his 
     nomination for the Sixth Circuit, and the others that will be 
     made by the majority leader, have not had the benefit of any 
     hearing before the Senate Judiciary Committee. I believe that 
     [a] hearing should take place before a lifetime appointment 
     is given to any person to the Circuit Court.'' We 
     wholeheartedly agree that the Michigan nominees to the Sixth 
     Circuit deserve hearings, and accordingly request that you 
     schedule hearings for Judges Saad, Neilson, McKeague, and 
     Griffin as soon as possible.
       On behalf of our constituents, we would appreciate your 
     immediate attention to this most urgent matter.
           Sincerely,
     William Frist,
                                      U.S. Senate Majority Leader.
     Mitch McConnell,
                                        U.S. Senate Majority Whip.

  Mr. FRIST. Mr. President, I also ask unanimous consent to have 
printed in the Record two letters from White House Counsel Alberto 
Gonzales outlining the history of these nominations.
  There being no objection, the material was sordered to be printed in 
the Record, as follows:

                                              The White House,

                                       Washington, March 28, 2003.
     Hon. Orrin Hatch,
     Chairman, Senate Judiciary Committee,
     U.S. Senate, Washington, DC.
       Dear Chairman Hatch: Thank you for your letter of March 25, 
     advising the President of a letter you recently received from 
     Senator Levin and Senator Stabenow. As you note, Senators 
     Levin and Stabenow have returned blue slips objecting to all 
     five judicial nominees from Michigan pending before the 
     Committee. The Michigan Senators' letter further suggests 
     that the White House did not engage in adequate consultation 
     with them regarding these nominees. You have asked me to 
     describe the nature and extent of consultation between the 
     White House and the Michigan Senators regarding Richard 
     Griffin, David McKeague, Susan Bieke Neilson, Henry Saad and 
     Thomas Ludington. We are pleased to have the opportunity to 
     explain why we believe there has been appropriate 
     consultation.
       Before turning to a chronological review of the record, we 
     believe a general comment is in order. Senators Levin and 
     Stabenow insisted from the outset that President Bush should 
     renominate to the Sixth Circuit two nominees of President 
     Clinton--Helene White and Kathleen McCree Lewis--who had not 
     received hearings or votes. The Senators argued that 
     ``elementary fairness . . . necessitates that they be 
     renominated, that hearings be held, and that they be voted up 
     or down by the Senate Judiciary Committee.'' See Levin-
     Stabenow Letter to President Bush (April 3, 2001). In 
     response, we informed the Senators that we were in fact 
     considering Judge White and Ms. McCree Lewis, along with 
     numerous other candidates, for the Sixth Circuit, but that 
     the President would not commit to renominating them for those 
     seats. We explained that it is extraordinarily rare for a 
     President to nominate for the federal bench an individual 
     previously nominated by his predecessor, especially when the 
     predecessor is from another political party; that President 
     Bush was not responsible for the failure of Judge White and 
     Ms. McCree Lewis to attain confirmation; and that numerous 
     individuals appointed by President George H.W. Bush to the 
     federal courts of appeals saw their nominations lapse without 
     Senate action at the end of 1992, and did not have their 
     names resubmitted by President Clinton. As we summarized, 
     ``President Bush is entitled to make his own appointments for 
     these vacancies, and he may well prefer candidates other than 
     those previously chosen by President Clinton.'' See Gonzales 
     Letter to Senators Levin and Stabenow (April 10, 2001).
       Following this initial exchange, in which the White House 
     made its position very clear, we moved forward with the 
     process of evaluating candidates for the judicial vacancies 
     in Michigan--including Judge White and Ms. McCree Lewis, who 
     we interviewed--and recommending nominees to the President. 
     Throughout this process, we repeatedly consulted with the 
     Michigan Senators, seeking their input on candidates time and 
     time again, almost literally until the eve of their 
     nominations. At no point did either Senator Levin or Senator 
     Stabenow ever articulate any specific objections to any of 
     the five nominees. Instead, the Michigan Senators 
     consistently responded to our consultations by (1) continuing 
     to ask that President Bush ``address'' the White and McCree 
     Lewis situations by renominating them, and (2) refusing to 
     provide feedback on our proposed candidates unless and until 
     we gave in to that request.
       Specifically, our records show that, prior to the 
     nominations of the five individuals in question, the White 
     House engaged in the following noteworthy consultations with 
     the Michigan Senators.
       April 3, 2001. The Michigan Senators write to the President 
     to announce their position: ``[E]lementary fairness to [Judge 
     White and Ms. McCree Lewis] . . . necessitates that they be 
     renominated, that hearings be held, and that they be voted up 
     or down by the Senate Judiciary committee''; and 
     ``[n]ominating others in their stead would not only be 
     inconsistent with your stated goal of bipartisanship, it 
     would compound the difficult situation we are now in relative 
     to filling the Michigan judicial vacancies on the Sixth 
     Circuit.''
       April 10, 2001. I respond in writing as described above--
     stating that we are considering Judge White and Ms. McCree 
     Lewis, but that President Bush is entitled to make his own 
     appointments for the Michigan vacancies.
       May 17, 2001. At a meeting in my office, I provide the 
     Senators with the names of individuals being considered for 
     the Sixth Circuit (including Judges Saad, McKeague, and 
     Griffin) and for the vacancy on the U.S. District Court for 
     the Eastern District of Michigan (including Thomas 
     Ludington). I invite the Senators to provide their feedback 
     on those individuals. Senator Levin, however, states that he 
     will not provide any reactions until ``the larger issue'' is 
     settled.
       May 17, 2001. Following up on my meeting with the Senators, 
     Associate Counsel Brad Berenson calls the Chiefs of Staff of 
     Senators Levin and Stabenow, again providing the names of the 
     candidates and soliciting the Senators' reaction.
       May 23, 2001. Mr. Berenson consults again with Senator 
     Levin's Chief of Staff regarding Judges Griffin, McKeague and 
     Sadd--making clear that no nominations are definite, and 
     again asking for reactions or feedback from the Senator. Mr. 
     Berenson also delivers the same message and invitation by 
     voice mail to Senator Stabenow's Chief of Staff.
       June 7, 2001. Mr Berenson again calls Senator Stabenow's 
     Chief of Staff seeking the Senator's reaction to the 
     potential judicial nominees. The Chief of Staff reports that 
     Senator Stabenow does not know any of the individuals in 
     question and again urges that no action should be taken on 
     them until the White/McCree Lewis situation is addressed.
       June 15, 2001. Mr. Berenson again calls Senator Stabenow's 
     chief of Staff--once again seeking the Senator's reaction to 
     the potential judicial nominees, and notifying the Senator 
     that Susan Bieke Neilson is under consideration for the Sixth 
     Circuit. Mr. Berenson also calls Senator Levin's Chief of 
     Staff to deliver the same message, but is told that the Chief 
     of Staff can not talk until the following Monday.
       June 21, 2001. After leaving several telephone messages, 
     Mr. Berenson succeeds in contacting Senator Levin's Chief of 
     Staff. Again, he seeks the Senator's reaction to the 
     potential judicial nominees we had identified on May 17; he 
     also gives notice that Susan Bieke Neilson is under 
     consideration for the Sixth Circuit.
       July 9, 2001. Mr. Berenson speaks by phone with Senator 
     Levin's Chief of Staff regarding Judge Neilson. Mr. Berenson 
     leaves a voice mail message about Judge Neilson for Senator 
     Stabenow's Chief of Staff.
       August 8, 2001. Mr. Berenson places phone calls to both 
     Senators' Chiefs of Staff. Both are on vacation, so Mr. 
     Berenson leaves messages regarding Judge Ludington.

[[Page 18209]]

       August 10, 2001. Senator Levin's Chief of Staff writes to 
     Mr. Berenson reiterating Senator Levin's original position.
       August 14, 2001. Mr. Berenson responds to Senator Levin's 
     Chief of Staff, explaining that ``although we gave careful 
     consideration to the matter, including interviews of both 
     women, the President does not intend to nominate both these 
     women to the Sixth Circuit.'' Mr. Berenson's letter further 
     notes that ``[we] have . . . continued to keep the Senator 
     fully informed at every stage of our deliberations, providing 
     the names of individuals the President is considering for 
     appointment and repeatedly soliciting the Senator's views,'' 
     and advises that ``we would prefer to have the Senator's 
     input before the President makes nominations.''
       August 17, 2001. I send a letter to then-Chairman Leahy 
     (with copies to the Michigan Senators as well as to you), 
     once again clearly setting out the White House's position. I 
     write that ``I have met with Senators Levin and Stabenow and 
     have listened carefully to their concerns regarding the 
     history of nominations from Michigan to the Sixth Circuit. 
     Although I understand their desire to have the President 
     renominate two of President Clinton's candidates for the 
     Court of Appeals . . . we believe it would be unfair to 
     expect the President to do so. The net result of our 
     discussions is an apparent standoff in which the two Michigan 
     Senators are attempting (inappropriately, in my view) to use 
     the threat of negative blue slips against President Bush's 
     Michigan circuit nominees to compel the President to 
     renominate Clinton nominees based upon grievances in which 
     president Bush played no part.'' I also reiterate that ``[w]e 
     remain committed to consulting closely with home-state 
     Senators to identify judicial candidates the President may 
     nominate with the support of the Senators; however, 
     meaningful, good faith consultation by the Senators cannot, 
     in my judgment, include a demand that President Bush select 
     as nominees those individuals previously selected by the 
     prior Administration.''
       August 22, 2001. Senator Levin's Chief of Staff writes to 
     Mr. Berenson, proposing a bipartisan commission for judicial 
     nominations in Michigan.
       August 23, 2001. Mr. Berenson responds, explaining that the 
     White House is not willing to consider a commission in 
     Michigan at this time. Mr. Berenson elaborates: ``Commissions 
     exist or are under consideration in only two or three states 
     in which history or other special circumstances clearly 
     justify such an unorthodox mechanism. None of these 
     circumstances exists in Michigan.''
       October 9, 2001. I meet with the Michigan Senators at 
     Senator Levin's office to discuss potential solutions to the 
     Sixth Circuit impasse.
       October 31, 2001. I speak with Senator Levin to explain why 
     the Michigan Senators' commission proposal is not acceptable, 
     and to inform the Senator of the president's intent to make 
     nominations to the Sixth Circuit seats shortly.
       November 1, 2001. Senators Levin and Stabenow write to urge 
     me ``to reconsider [their] proposal to jointly establish a 
     bipartisan judicial nominating commission for the existing 
     Michigan vacancies on the Sixth Circuit Court of Appeals.'' 
     Again, they do not provide any comments on Judges Griffin, 
     McKeague, Neilson, Saad or Ludington--and they indicate that 
     ``we could not, in good conscience, return blue slips on 
     Sixth Circuit nominees until the unfair treatment of the 
     nominations of [Judge White and Ms. McCree Lewis] is 
     addressed.''
       November 2, 2001. I respond to the Michigan Senators, 
     respectfully declining to reconsider our decision not to 
     establish a judicial nominating commission, and reiterating 
     that we had proposed an appropriate solution to the Michigan 
     situation. My letter also gives fair warning that ``the 
     President will soon make nominations to all of the existing 
     federal judicial vacancies in Michigan,'' and invites the 
     Michigan Senators to reconsider their position.
       Following these extensive consultations by the White House, 
     the President nominated Judges McKeague, Saad and Neilson on 
     November 8, 2001.
       Still, our consultations as to the remaining vacancies 
     continued even after this point. I met with the Michigan 
     Senators on December 19, 2001, and again on February 7, 2002, 
     to discuss solutions to the Michigan. situation, and I called 
     them on June 20 and 24, 2002. Seeing no prospect of 
     resolution, the President nominated Judge Griffin to the 
     Sixth Circuit on June 26, 2002. Judge Ludington was nominated 
     later that year, on September 12.
       In short, we engaged in repeated pre-nomination 
     consultations with the Michigan Senators regarding these five 
     nominees, making every reasonable effort to get the Senators' 
     feedback. We interviewed the candidates suggested by the 
     Senators--Judge White and Ms. McCree Lewis. And we proposed 
     our own reasonable solution to the matter. Notwithstanding 
     these extensive efforts by the White House, the Michigan 
     Senators steadfastly refused to provide feedback on the 
     nominees, instead insisting that the President should first 
     agree to nominate President Clinton's candidates and/or to 
     turn the process over to a commission. After several months, 
     with no sign of progress, and having received no specific 
     objections to any of the individuals in question, the 
     President proceeded with his nominations, to address the 
     acknowledged judicial emergencies on the Sixth Circuit. These 
     emergencies continue to this day, and affect not only the 
     constituents of Senators Levin and Stabenow, but also the 
     citizens of Kentucky, Ohio and Tennessee.
       I believe that any reasonable observer would agree that the 
     record described above demonstrates that the White House 
     engaged in appropriate consultations with respect to the five 
     Michigan judicial nominees.
       I trust that this letter provides the information you need 
     regarding our extensive consultation with the Michigan 
     Senators. However, I would be pleased to provide additional 
     details if necessary.
           Sincerely,
                                              Alberto R. Gonzales,
     Counsel to the President.
                                  ____



                                              The White House,

                                        Washington, April 2, 2003.
     Hon. Carl Levin,
     U.S. Senate,
     Washington, DC.
     Hon. Debbie A. Stabenow,
     U.S. Senate,
     Washington, DC.
       Dear Senators Levin and Stabenow: I respectfully write with 
     regard to your March 19 joint letter to Chairman Hatch, which 
     accompanied your return of blue slips indicating your 
     opposition to a hearing and vote for five pending Michigan 
     nominees for federal judicial seats. Your letter explains 
     that you are objecting to these Michigan nominees--and will 
     continue to object to future Michigan nominees--in order to 
     protest the fact that two of President Clinton's judicial 
     nominees from Michigan did not receive hearings.
       Although you have returned negative blue slips for all of 
     these nominations, you do not indicate any opposition based 
     upon qualifications to any of the five individuals in 
     question. Nor did you express any such specific opposition 
     during our pre-nomination consultations with your offices 
     regarding these individuals. (This consultation history is 
     described more fully in the attached response to any inquiry 
     from Chairman Hatch.) In our judgment, all five nominees are 
     indeed well qualified to serve on the federal bench, and 
     deserve prompt hearings and votes. I will briefly review 
     their qualifications below, before turning to your complaints 
     regarding President Clinton's nominees and, finally, 
     addressing your blue slips.


                            i. the nominees

       David McKeague, Susan Bieke Neilson, Henry Saad, Richard 
     Griffin and Thomas Ludington are well qualified for the 
     judicial seats for which they have been nominated.
       Judge McKeague has served on the U.S. District Court for 
     the Western District of Michigan since 1991, when he was 
     unanimously confirmed by the then-Democrat-controlled Senate. 
     During his tenure as a district judge, he has on seven 
     occasions been designated to sit on a panel of the Sixth 
     Circuit. Chief Justice Rehnquist appointed Judge McKeague to 
     serve on the Judicial Conference's Committee on Defender 
     Services, where Judge McKeague chairs the funding 
     subcommittee. The Chief Justice also appointed Judge McKeague 
     to the District Judges Education Committee of the Federal 
     Judicial Center, which Judge McKeague chairs. The American 
     Bar Association (``ABA'') has given Judge McKeague, a ``Well 
     Qualified'' rating for the Sixth Circuit.
       Judge Neilson has served on the 3rd Judicial Circuit Court 
     of Michigan since 1991. She has written numerous articles and 
     was co-editor and author of Michigan Civil Procedure, a two-
     volume treatise on all areas of Michigan civil practice. This 
     treatise was selected by the Michigan Judicial Institute for 
     purchase on behalf of every trial judge in the State of 
     Michigan and received the ``Plain English Award'' from the 
     State Bar of Michigan. The ABA has unanimously rated Judge 
     Neilson ``Well-Qualified'' for the Sixth Circuit.
       Judge Saad has served on the Michigan Court of Appeals 
     since 1994. During his 1996 retention election, he received 
     broad bipartisan support, including endorsements from the 
     Michigan Chamber of Commerce and the United Auto Workers. 
     Judge Saad is also active in the community. He has served as 
     President of the Wayne State University Law School Alumni 
     Association, Chairman of the Board of the Oakland Community 
     College Foundation, and as a Board Member on the National 
     Conference of Christians and Jews. In 1995, he received the 
     Arab-American and Chaldean Council Civic and Humanitarian 
     Award for Outstanding Dedication to Serving the Community 
     with Compassion and Understanding. The ABA has given Judge 
     Saad a ``Qualified'' rating. It also bears noting that Judge 
     Saad was nominated to the Eastern District of Michigan by 
     President George H.W. Bush a decade ago, but did not receive 
     a hearing.
       Judge Griffin has served on the Michigan Court of Appeals 
     since 1989. He has served the bench and bar in a number of 
     volunteer capacities. He is a former member of the federal 
     judicial selection committee for the Western District of 
     Michigan, and currently serves as Chairman of the Quality 
     Review Committee for the Michigan Court of Appeals. The ABA 
     has rated Judge Griffin

[[Page 18210]]

     ``Well Qualified'' to serve on the Sixth Circuit.
       In sum, all four of the President's Sixth Circuit nominees 
     from Michigan have extensive experience on the state or 
     federal benches; all are active in their communities and in 
     the bar; all have extensive support in Michigan; and all have 
     received Well Qualified or Qualified ratings from the ABA. We 
     respectfully submit that by any traditional standard, Judges 
     McKeague, Neilson, Saad and Griffin are superbly qualified 
     candidates for the vacant seats on the Sixth Circuit--seats 
     that have been designated ``judicial emergencies'' by the 
     Judicial Conference.
       Thomas Ludington is likewise fully qualified for the 
     district court. He has considerable experience on the state 
     bench--having served as Chief Judge of the 42nd Circuit Court 
     in Michigan since 1995--and enjoys wide support within the 
     State. And he too has received a unanimous ``Well Qualified'' 
     rating from the ABA.


                    II. the basis of your objections

       In explaining your negative blue slips, you note that two 
     of President Clinton's Michigan nominees to the Sixth 
     Circuit, Judge Helene White and Kathleen McCree Lewis, did 
     not receive hearings or votes.
       We understand your position. President Bush has explained 
     that too many nominees of both President Bill Clinton and 
     President George H.W. Bush did not receive timely hearings 
     and votes. For example, two of President George H.W. Bush's 
     Sixth Circuit nominees--John Smietanka and Justin Wilson--and 
     his nominee to the Eastern District of Michigan, Judge Saad, 
     did not receive hearings or votes in the then-Democrat-
     controlled Senate a decade ago.
       President Bush has called on both parties to move on from 
     the cycle of blame and retribution that has plagued the 
     Senate for more than a decade. Since the 2000 campaign, the 
     President has emphasized that every judicial nominee should 
     receive a committee hearing and up or down floor vote within 
     a reasonable time, no matter who is President or which party 
     controls the Senate. On October 30, 2002, after nearly two 
     additional years of Senate delays, the President advanced a 
     plan involving all three Branches that would require, among 
     other steps, the Senate to vote on nominees within 180 days 
     of nomination. The plan would ensure a generous period of 
     time for all Senators to gather information and have their 
     voices heard and votes counted. Whether the nominee is John 
     Smietanka or Helene White or Susan Bieke Neilson, whether the 
     President is President Clinton or President Bush, whether the 
     Senate is Republican- or Democrat-controlled, the President 
     believes that the procedures for fair and timely Senate 
     consideration and votes on judicial nominations should be the 
     same.


                iii. the significance of the blue slips

       Against this backdrop, let me turn to your blue slips.
       It has been my understanding that the blue slip is not a 
     veto, but rather a device to ensure adequate pre-nomination 
     consultation with home-state Senators, such as has occurred 
     in the cases of these five nominees. We understand this to 
     have been the consistent Senate policy for at least the last 
     25 years--during the Chairmanships of Senators Kennedy, 
     Thurmond, Biden and Hatch. And in recent weeks, several other 
     Democratic Senators (including former Chairman Leahy) have 
     argued that Jorge Rangel and Enrique Moreno, nominees of 
     President Clinton to the Fifth Circuit, should have received 
     hearings and votes notwithstanding what the Committee deemed 
     to be inadequate consultation with home-state Senators--
     thereby implicitly embracing the view that home-State 
     Senators should not be allowed to veto a nominee.
       We agree strongly with the bipartisan policy maintained by 
     Senators Kennedy, Thurmond, Biden, and Hatch as Chairs of the 
     Judiciary Committee. We respectfully agree that the tradition 
     of consultation does not and should not entail a veto for 
     home-state Senators, particularly a veto wielded for 
     ideological or political purposes. Rather, the intention of 
     the Constitution and the tradition of the Senate require, in 
     our judgment, that the full Senate hold on up or down vote on 
     each judicial nominee. If the objections of home-state 
     Senators to a nominee are persuasive, those objections either 
     will deter the President from submitting the nomination in 
     the first instance or, alternatively, will convince a 
     majority of the Senate that the nomination should be 
     rejected. As Senator Kennedy stated in 1981, however, the 
     Senate has not allowed and should not allow ``individual 
     Senators [to] ban, prohibit, or bar'' consideration of a 
     nominee.
       Once again I respectfully suggest that all Senators should 
     have their voices heard and their votes counted on the 
     nominations of Judges McKeague, Neilson, Saad, Griffin, and 
     Ludington--five individuals well qualified to serve on the 
     federal bench.
       I remain hopeful that we can work together to fill these 
     judicial emergencies and I remain ready to meet to explore 
     options.
           Sincerely,
                                              Alberto R. Gonzales,
                                         Counsel to the President.

  Mr. FRIST. After looking at the record, I have reached the conclusion 
that the objection to these nominees having hearings is based not on 
any substantive concerns about their qualifications, or their 
temperament, or about their integrity. Indeed, these four nominees are 
held in the highest regard and enjoy solid reputations. Nor is it based 
on a failure of the White House to properly consult with the Michigan 
Senators. In fact, it appears that the administration has been 
extremely solicitous of their views, having engaged in extensive and 
good-faith consultation, as that term is properly understood.
  Rather, based upon review of the record of consultation and 
correspondence, it appears that the Michigan Senators object to the 
consideration of these nominees for purposes totally unrelated to their 
personal qualifications. Simply put, they believe that two Clinton 
nominees from Michigan who were not confirmed should be renominated by 
President Bush. Because the White House has not taken this 
extraordinary step of renominating two of former President Clinton's 
nominees, the Michigan Senators have decided to block, to obstruct, all 
four of Michigan's circuit court nominees. I might add, they are 
blocking the district court nominees as well.
  I believe the reason it is important for us to shed light on this 
issue is--and I am sure the American people and my colleagues will 
agree--that this is not a valid reason to hold the people of the entire 
Sixth Circuit Court hostage and inflict damage and delay on our 
constituents.
  The situation is simply unacceptable and cannot continue. The 
Michigan Senators, I believe, should not be able to prevent the entire 
Senate from acting on four outstanding nominees who would fill what we 
all know are officially classified as judicial emergencies on the 
appellate court that is operating with fully one-fourth of its seats 
vacant right now. These are judicial emergencies.
  I should note that one of these nominees, Judge Henry Saad, was first 
nominated by the first President Bush and was never given a hearing. He 
has been waiting, in effect, for over a decade. It bears noting that 
when he is confirmed by this Senate, he will be the first Arab American 
to serve on the Federal courts.
  The Constitution of the United States requires that the Senate 
responsibly and expeditiously vote on the President's nominees--``yea'' 
or ``nay''--and allow the courts to get on with their work. Instead, 
what is happening is that the President's nominees to the Sixth Circuit 
are being held up, and the Senate is blocked from performing its 
constitutional duty.
  Among the 12 U.S. Courts of Appeals, the Sixth Circuit is now dead 
last in the timeliness of its disposition of cases.
  District court judges within the Sixth Circuit warn us that by having 
to perform regular duty as a substitute judge on the court of appeals, 
their own trial dockets have slowed considerably.
  Only a substantial commitment on the part of the senior judges of the 
Sixth Circuit, district judges from the within the Sixth Circuit, and 
visiting appellate judges from other circuits has kept the caseload 
even barely manageable. The Sixth Circuit is the third busiest court of 
appeals, and Chief Judge Boyce Martin has asked Congress to authorize a 
17th judge for the court. The court would be overworked even if it had 
its full complement of 16 judges.
  According to District Judge Robert Bell, W.D. Michigan, ``We're 
having to backfill with judges from other circuits, who are basically 
substitutes. You don't get the same sense of purpose and continuity you 
get with full-fledged court of appeals judges.'' Furthermore, ``we 
don't have the time or the resources that the circuit court has. You 
can't help to conclude that if we had 16 full-time judges with the full 
complement of staff, that each case might get more consideration . . 
.''
  Those are very troubling words: ``Each case might get more 
consideration.'' It is unconscionable that we would deliberately allow 
our courts to get clogged up, backlogged, and undermined because some 
in Washington

[[Page 18211]]

wish to politicize the process. Our courts are supposed to be fair and 
impartial. They are supposed to serve both victims and defendants. We 
are undermining the rights of our fellow citizens if we do not resolve 
this issue.
  It is not just judges who are seeing what is happening. United States 
attorneys in Michigan tell us that the delays caused by the vacancies 
are complicating their ability to prosecute wrongdoers, defendants are 
able to commit more crime while awaiting trial, there is less 
consistency in the court's jurisprudence, and the United States is 
effectively being deprived of en banc review in some cases.
  A letter signed by 31 Assistant United States Attorneys in the 
Eastern District of Michigan states:

       [i]n years past, it was the normal practice of the Sixth 
     Circuit that a case would be heard by the Court approximately 
     three months after all briefs were filed, and in most cases 
     an opinion would issue in about three additional months. At 
     present, due to the large number of vacancies on the Court . 
     . . it has been taking on average between twelve and eighteen 
     months longer for most appeals to be completed . . .

  Moreover, they go on:

       [D]elays in criminal cases hurt the government . . . [T]he 
     longer a case goes on, the more chance there is that 
     witnesses will disappear, forget, or die, documents will be 
     lost, and investigators will retire or be transferred . . . 
     In some cases, convicted criminal defendants are granted bond 
     pending appeal. The elongated appellate process therefore 
     allows defendants to remain on the street for a longer period 
     of time, possibly committing new offenses. In addition, the 
     longer delay makes retrials more difficult if the appeal 
     results in the reversal of a conviction.

  They go on:

       [T]he Sixth Circuit has resorted to having more district 
     judges sit by designation as panel members. This practice has 
     contributed to a slowdown of the hearing of cases in the 
     district courts, because the district judges are taken out of 
     those courtrooms. The widespread use of district judges also 
     provides for less consistency in the appellate process than 
     would obtain if full-time Circuit Judges heard most of the 
     appeals.

  And they conclude:

       In some cases, the small number of judges on the Court has 
     served to effectively deprive the United States of en banc 
     review . . . Achieving a unanimous vote of all of those 
     judges of the Court who were not part of the original panel 
     is, as a matter of practice, impossible, and not worth 
     seeking. However, if the Court was at full strength, an en 
     banc review could have been granted with the votes of about 
     two thirds of the active judges who were not part of the 
     original panel.

  I quote their comments at length because I want to lay out in 
unambiguous terms what is happening to our justice system.
  Justice delayed is justice denied--justice denied to everyone, 
including victims, defendants, and the entire community.
  President Bush has nominated four well-qualified individuals from 
Michigan to fill these vacancies. The objections of the Michigan 
Senators are, in my view, unreasonable. The basis of their complaint is 
that two nominees were left without hearings at the end of President 
Clinton's term in 2001.
  They ignore the fact that two nominees were also left without 
hearings at the end of President Bush's term in 1993, which means that 
President Clinton got to appoint the same number of judges to the Sixth 
Circuit as the number of vacancies that came open during his 
Presidency.
  Both parties have left nominations ending at the end of Presidents' 
terms. But the effort by my Michigan colleagues to block nominations at 
the outset of a President's term is unheard of.
  Five of the Sixth Circuit's active judges--nearly half--were 
appointed by President Clinton.
  Let me read from the Grand Rapids Press. It makes the point well, 
saying:

       The Constitution does not give [Sens. Levin and Stabenow] 
     co-presidential authority and certainly does not support the 
     use of the Court of Appeals to nurse a political grudge . . . 
     [Sens. Levin and Stabenow] have proposed that the president 
     let a bipartisan commission make Sixth circuit nominations or 
     that Mr. Bush renominate the two lapsed Clinton nominations. 
     Mr. Bush has shown no interest in either retreat from his 
     constitutional prerogatives. Nor should he. Movement in this 
     matter should come from Sens. Levin and Stabenow--and, 
     clearly, it should be backward.

  Our courts cannot work if we do not have judges to run them. And our 
communities suffer when our courts do not work--victims, who never see 
justice, defendants who hang in limbo, and communities that go 
unprotected.
  President Bush's judicial nominees deserve a simple up-or-down vote. 
That is all that is being asked. This is one of our most important 
constitutional duties. We cannot use the system to nurse grudges. The 
consequences are too great. The public expects us to do our duty. I 
call upon my fellow Senators to exercise their constitutional 
responsibilities and free the Michigan four.
  Mr. President, I yield the Republican time to the majority whip, the 
Senator from Kentucky.
  The ACTING PRESIDENT pro tempore. The Senator from Kentucky.
  Mr. McCONNELL. I thank the Chair.
  Mr. President, I thank the majority leader for outlining what is 
truly a crisis in the Sixth Judicial Circuit, the federal circuit which 
includes Tennessee, Kentucky, Ohio, and Michigan.
  As this chart illustrates, of the 16 judgeships on the Sixth Circuit, 
4 seats are vacant. They are all Michigan seats. They are being held up 
by the Michigan Senators, strangely enough, as the majority leader has 
outlined, based upon some grievance that occurred in the past. But the 
problem is not the past; it is the present. We have a judicial vacancy 
crisis in the Sixth Circuit that affects not only the State of Michigan 
but litigants in Tennessee, Kentucky, and Ohio.
  If we look at the second chart, we will see what the effect is on 
litigants. Back in 1996, the Sixth Circuit had to handle about 364 
cases per active judge. For 2002, it is up to 643 cases per active 
judge, an increase of 77 percent.
  The Sixth Circuit is essentially swamped with litigation, and justice 
is being denied by being delayed. It is the slowest circuit in the 
country. Sixth Circuit litigants have to wait on justice 50 percent 
longer than any other litigants in any other part of America just 
because they happen to be a litigant in the Sixth Judicial Circuit 
because of the action of the Michigan Senators in holding up all four 
of these well-qualified nominations to the Sixth Circuit. If you are so 
unfortunate as to be a litigant in the Sixth Circuit, you have to wait 
50 percent longer than the national average to have your case dealt 
with.
  Senatorial prerogatives are important, but my recollection is 
Senators do not get to pick circuit judges in the first place. I guess 
we can have an argument about the blue slip policy as it relates to 
district judges, but we do not get to pick circuit judges; they are a 
Presidential prerogative.
  To simply withhold judges at the circuit level to secure nominations 
that the election does not give you an opportunity to achieve--in other 
words, the Republicans won the election in 2000--and, by doing that, 
dramatically disadvantage litigants not only in your own State but in 
three other States, seems to this Senator unfair.
  I guess the issue is what can be done about it. As the majority 
leader indicated and as I believe the senior Senator from Illinois 
indicated last week--the Senator from Illinois noted that there had not 
been any hearings on these nominees--my suggestion and the majority 
leader's suggestion to the chairman of the Judiciary committee, Senator 
Hatch, is to have hearings on these nominees. We have sent him a letter 
requesting that, because of the judicial emergencies in the Sixth 
Circuit, he go forward with hearings on these nominees.
  I hope Chairman Hatch will do that and the committee will forthwith 
act on these judges, send them to the floor, and let the Senate work 
its will because we have a crisis. My people in Kentucky did not have 
anything to do with this issue, and they ought not be penalized because 
of actions in some other State in the Sixth Judicial Circuit. I hope 
Senator Hatch, the chairman of the Judiciary Committee, will hold these 
hearings in the very near future.
  Mr. FRIST. Will the Senator from Kentucky yield for a question?
  Mr. McCONNELL. I do yield for a question.

[[Page 18212]]


  Mr. FRIST. Mr. President, I ask the Senator from Kentucky to share 
his concern as to the effect this particular delay of the Sixth Circuit 
nominees has on the people we serve every day and how their real lives 
are being affected. I think that is what drives us in moving forward, 
recognizing this delay is simply unacceptable.
  Mr. McCONNELL. Mr. President, if you are a litigant from Tennessee or 
Kentucky and are having to wait 50 percent longer than a litigant in 
some other State because of the actions by the Senators from Michigan, 
it seems to me that is simply unfair. Because of some grievance that 
occurred in the past, some score being settled by holding hostage these 
litigants from Tennessee and Kentucky who had nothing to do with this 
situation, I think is grossly unfair.
  One thing the majority leader has asked Senator Hatch to do that will 
help is have hearings, as has been suggested by the senior Senator from 
Illinois, and move forward on these nominations.
  Mr. FRIST. Mr. President, I thank the Senator. That does bring into 
focus what we are here to do. For me, that brings into focus why, for 
us to be good stewards of the judiciary, we need to accelerate this 
process and move it forward. Indeed, that is what the Constitution 
calls upon us to do.
  Mr. President, how much time remains on this side?
  The ACTING PRESIDENT pro tempore. The leader controls 2 minutes 15 
seconds.
  Mr. FRIST. I yield the remainder of our time to the distinguished 
Senator from Tennessee.
  The ACTING PRESIDENT pro tempore. The Senator from Tennessee is 
recognized.
  Mr. ALEXANDER. Mr. President, I thank the majority leader and the 
whip for bringing this to the attention of the Senate.
  I am new to the Senate. This situation is very disappointing to me as 
a Senator from the Sixth Circuit. I will give one example of how this 
affects people in real time and real lives in Tennessee, Kentucky, 
Ohio, and Michigan. Thirty-one assistant U.S. attorneys in the Eastern 
District of Michigan have written a letter to Senator Levin to complain 
that the vacancies have slowed justice, have complicated prosecutions, 
have enabled criminals to commit more crimes while awaiting trial, have 
led to less consistency in decisions, and have deprived the United 
States of en banc review in some cases.
  A group of law professors, in a letter to the majority leader, stated 
that because of the unfilled judicial vacancies, the Sixth Circuit 
takes as long as 15 months to reach a final disposition, 5 months more 
than the national average.
  This is unfair to the people in our State. I hope the Judiciary 
Committee will move swiftly to hearings and the Senate will move 
swiftly to consider, vote on, and hopefully confirm the Michigan four.
  I thank the Chair.
  The ACTING PRESIDENT pro tempore. The Senator from Nevada.
  Mr. REID. Mr. President, how much time do the Democrats have in 
morning business?
  The ACTING PRESIDENT pro tempore. The Democrats have 15 minutes under 
a previous order.
  Mr. REID. Mr. President, I yield all 15 minutes to Senator Mikulski.
  The ACTING PRESIDENT pro tempore. The Senator from Maryland is 
recognized for up to 10 minutes.
  Ms. MIKULSKI. I thank the Chair.
  Mr. President, I yield 5 minutes to the Senator from Michigan and 
then 10 minutes to myself.

                          ____________________