[Congressional Record (Bound Edition), Volume 150 (2004), Part 13]
[Senate]
[Pages 16979-16982]
[From the U.S. Government Publishing Office, www.gpo.gov]




NOMINATION OF RICHARD A. GRIFFIN TO BE UNITED STATES CIRCUIT JUDGE FOR 
                           THE SIXTH CIRCUIT


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order and pursuant to rule 
XXII, the clerk will report the motion to invoke cloture.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of Rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on Executive 
     Calendar No. 789, Richard A. Griffin of Michigan, to be U.S. 
     circuit judge for the Sixth Circuit.
         Bill Frist, Orrin Hatch, Lamar Alexander, Charles 
           Grassley, Mike Crapo, Pete Domenici, Lincoln Chafee, 
           Mitch McConnell, Ted Stevens, George Allen, Lindsey 
           Graham, John Warner, Jeff Sessions, John Ensign, Trent 
           Lott, Jim Talent, Pat Roberts.

  Mr. HATCH. Mr. President, I am pleased that we are considering the 
nominations of Judge Richard Griffin and Judge David W. McKeague, who 
have been nominated by President Bush to serve on the United States 
Court of Appeals for the Sixth Circuit. These individuals each have a 
sterling resume and a record of distinguished public service. So I rise 
today to express my enthusiastic support for the confirmation of Judge 
Richard Griffin and Judge David W. McKeague to the Sixth Circuit Court 
of Appeals.
  It is unfortunate that we have to continue coming to the floor to 
vote on cloture motions, to end debate on these nominations, rather 
than the Senate being able to vote up or down on the merits of the 
nomination. This unprecedented abuse of the process, by filibuster, to 
prevent a majority of the Senate from exercising its will is truly 
disturbing. What is going on is a hijacking of the constitutional 
process of advice and consent.
  This abuse of the process isn't just being used on these two 
nominees. Unfortunately, we have now reached double-digit filibusters. 
There are ten judicial nominees who have been subjected to a 
filibuster. They are Miguel Estrada, D.C. Circuit; Priscilla Owen, 5th 
Circuit; William Pryor, 11th Circuit; Charles Pickering, 5th Circuit; 
Carolyn Kuhl, 9th Circuit; Janice Rogers Brown, D.C. Circuit; Williams 
Myers, 9th Circuit; Henry Saad, 6th Circuit; David McKeague, 6th 
Circuit; and Richard Griffin, 6th Circuit. In addition to these ten 
individuals, there are five additional Circuit Court nominations that 
are threatened to be filibustered--Claude Allen, 9th Circuit; Terrence 
Boyle, 4th Circuit; Susan Neilson, 6th Circuit; Brett Kavanaugh, D.C. 
Circuit; and William Haynes, 4th Circuit.
  These individuals being filibustered represent a cross section of 
America

[[Page 16980]]

and include men and women as well as members of various minority 
groups. And they are decent individuals with outstanding records in the 
law, in public service and in their States and communities.
  It appears that these nominations are being tied up as some sort of 
payback for the way President Clinton's nominees were treated. However, 
a review of the record will demonstrate that this contention is without 
merit. What is happening is the creation of a stalemate for political 
purposes.
  The current controversy surrounding the nomination of Henry Saad to 
be United States Circuit Judge for the Sixth Circuit dates back a 
decade. At the end of President George H.W. Bush's administration two 
Michigan nominees to the federal courts were denied hearings by the 
Democratic Senate and failed to attain confirmation. Those nominees 
were John Smientanka and Henry Saad, whose nomination we are 
considering again today.
  As President Clinton named his nominees to fill judicial vacancies, 
there was no expectation, let alone demand, that the two previous 
nominees be renominated by a new administration. Accordingly, President 
Clinton did nominate Michigan nominees to both the Sixth Circuit and 
the district courts. In fact, nine of those nominees were confirmed. A 
majority were confirmed during Republican control of the Senate.
  Two nominees, Helene White and Kathleen McCree Lewis, failed to 
attain confirmation. The primary circumstance for their failed 
nomination was the lack of consultation with one of the home State 
senators. In his letter to then White House Counsel Beth Nolan, Senator 
Abraham wrote to express his astonishment and dismay that President 
Clinton forwarded the nomination for a Sixth Circuit seat without any 
advance notice or consultation.
  What was particularly troubling was that Senator Abraham had worked 
with the previous White House Counsel, Mr. Ruff, to improve the 
consultation process. In fact, despite previous difficulties, Senator 
Abraham had fully cooperated with the administration in advancing the 
nominations of a number of Michigan nominees. Unfortunately, the 
situation again deteriorated and the White House reverted to its 
previous pattern of lack of consultation. In fact, Senator Abraham was 
not consulted and in fact was told by the White House Counsel that 
despite earlier representations, the administration felt under no real 
obligation to do anything of the kind.
  Because of the White House's lack of consultation, the nominations of 
the two individuals did not move forward. This was consistent with my 
well stated policy, communicated to Mr. Ruff, that if good faith 
consultation has not taken place, the Judiciary Committee will treat 
the return of a negative blue slip by a home state Senator as 
dispositive and the nominee will not be considered.
  At the end of the Clinton presidency, the nominations of Ms. White 
and Ms. Lewis were returned to the President unconfirmed. Their 
renomination was urged by Senators Levin and Stabenow at the beginning 
of President Bush's administration. During the spring and summer of 
2001, there was considerable consultation by the President with the 
Michigan Senators regarding nominations to judicial vacancies, and the 
Sixth Circuit in particular.
  While the White House protected its constitutional prerogative to 
nominate individuals to the judiciary, there was an offer to consider 
nominating both of the two individuals to Federal judgeships in 
Michigan in an effort to advance the process. These overtures were not 
only rebuffed, but in fact holds were requested to be placed on all 
Sixth Circuit nominations.
  This was an unfortunate escalation of the dispute, and was 
particularly unfair to other States in the Sixth Circuit. In addition, 
this left the circuit at half-strength. Fortunately, we have been able 
to confirm non-Michigan judges to the circuit court.
  I regret that the cycle of acrimony and partisanship has escalated 
over the past decade. I believe the Bush administration made a good 
faith offer and regrets that the compromise was not accepted. However, 
even as the Judiciary Committee gives appropriate consideration to the 
views of home State senators, it is not in the public interest to 
permit this partisan obstructionism to continue.
  So let me summarize regarding the treatment of Michigan judicial 
nominees. During the current Bush presidency the Senate has confirmed 
no Michigan judges. Six nominations are pending. During the Clinton 
presidency the Senate confirmed nine Michigan judges. Although two 
Michigan nominees were left unconfirmed at the end of the Clinton 
presidency, two nominees were also left without hearings at the end of 
President Bush's term in 1993. During the first Bush presidency the 
Senate confirmed six Michigan judges. Two nominations were returned to 
the President.
  So for those who like to keep score, the Michigan judge tally is as 
follows: Current President Bush: 0-6; President Clinton: 9-2; former 
President Bush: 6-2. The record is clear that previous Presidents were 
treated fairly by the Senate. It is time to give President Bush the 
same courtesy and move forward with his Michigan Judges to the Sixth 
Circuit and the District Courts. We can begin by approving the cloture 
motions we will vote on today for Henry Saad, Richard Griffin, and 
David McKeague.
  Yesterday I spoke about the qualifications of Henry Saad. I would 
like to say a few words about the qualifications of the other two 
nominees whom we are voting on today.
  Judge Griffin has exceptional qualifications for the Federal 
appellate bench. After graduating from the University of Michigan Law 
School in 1977, Judge Griffin spent 11 years in the private practice of 
law first as an associate at Williams, Coulter, Cunning-
ham, Davison & Read from 1977-1981, then as a partner from 1981-1985. 
In 1985, Judge Griffin founded the firm Read & Griffin, in Traverse 
City, MI.
  During his private practice Judge Griffin specialized in automobile 
negligence, premises liability, products liability, and employment law. 
Additionally, he provided pro bono legal services as a volunteer 
counselor and attorney with the Third Level Crisis Center. In 1988, 
Judge Griffin was elected to the Michigan Court of Appeals. He was 
elected to retain his seat in 1996 and again in 2002.
  Judge Griffin was first nominated to this position by President 
George W. Bush on June 26, 2002. He was renominated to this seat on 
January 7, 2003. He is universally respected as one of the best judges 
in Michigan. He is not a controversial nominee. Yet he has been waiting 
for a vote for over 750 days because my colleagues on the other side of 
the aisle are, once again, playing politics with the Federal judiciary.
  Judge Griffin has an exemplary record that includes service as both a 
committed advocate and an impartial jurist. The American Bar 
Association has rated him well qualified for this position. Although 
the ABA rating used to be the gold standard as far as my Democratic 
colleagues were concerned, I am only half joking when I say that an ABA 
rating of well qualified seems to have become the kiss of death for 
President Bush's judicial nominees. Miguel Estrada, Carolyn Kuhl, David 
McKeague, William Haynes, Charles Pickering and Priscilla Owen, all 
received Well Qualified ratings from the ABA, and all are, or were, 
being filibustered by Democrats. Judge Griffin deserves to fare better, 
and I certainly hope we can give his nomination an up-or-down vote on 
the Senate floor.
  Simply put, Judge Griffin--along with the other qualified nominees to 
the Sixth Circuit--deserves a vote. I urge my colleagues to do what is 
right and join me in supporting his confirmation to the Sixth Circuit 
Court of Appeals.
  Judge David McKeague has also been nominated to serve on the Sixth 
Circuit Court of Appeals. Judge McKeague was first nominated to fill a 
Federal judgeship in 1992, when the first President Bush nominated him 
for a seat on the United States District Court for the Western District 
of Michigan. The

[[Page 16981]]

Judiciary Committee voted him to the floor with several other district 
court nominees en bloc, without any objection, and the full Senate 
confirmed him to the Federal bench by unanimous consent. Since 1992, he 
has served with distinction in the Western District of Michigan, and 
since 1994 has regularly been designated to sit on panels and draft 
appellate opinions for the Sixth Circuit Court of Appeals.
  On November 8, 2001, President Bush nominated Judge McKeague for a 
seat on the Sixth Circuit, the position for which we are considering 
him today. When no action was taken on his nomination during the 107th 
Congress, President Bush renominated him to the Sixth Circuit on 
January 7, 2003. As with the other nominees, it is time for the Senate 
to vote up or down on this nomination.
  In Judge McKeague, we have a jurist with impressive credentials who 
will honor his hometown of Lansing and serve with great distinction as 
a Sixth Circuit judge, as he already has for more than a decade as a 
Federal district judge in western Michigan.
  Judge McKeague graduated from the University of Michigan in 1968 and 
then attended the University of Michigan Law School. Upon his 
graduation from law school in 1971, he joined the law firm of Foster, 
Swift, Collins & Smith, P.C., in Lansing, MI, and in 1976 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, from 1979 until his 
confirmation to the Federal bench in February 1992, where he serves as 
a judge on the U.S. District Court for the Western District of 
Michigan.
  Since 1994, Judge McKeague regularly has participated by designation 
on, and authored appellate opinions for, panels of the U.S. Court of 
Appeals for the Sixth Circuit. So he already has considerable 
experience in handling Federal appellate cases--in fact, I understand 
that none of the decisions he has authored for the Sixth Circuit have 
been reversed--and I am certain that experience will serve him well 
once he is handling cases full time on the Sixth Circuit.
  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, the board of 
directors of a community museum that provides science education for 
children, Junior Achievement, which provides business education to high 
school students, and Camp Highfields, a private facility that provides 
housing and counseling for troubled youth. He has also been active as a 
member of the Wharton Center for the Performing Arts Advisory Council, 
the American Inns of Court, the Catholic Lawyers Guild, and the 
Federalist Society for Law and Public Policy Studies. While in private 
practice and since his service on the Federal bench began, he has 
directed and participated in numerous seminars, moot court 
competitions, and trial advocacy programs at high schools, universities 
and law schools throughout Michigan. In addition, prior to his 
confirmation to the Federal bench, he served 6 years in the United 
States 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.
  Judge McKeague is a distinguished and well-respected Federal judge 
who, in the words of one of his current colleagues on the Federal 
district court, ``let the law and the facts take him where they take 
him.'' He will make an outstanding addition to the Sixth Circuit, and I 
urge my colleagues to vote for his confirmation.
  Let me make something absolutely clear: We need to vote on these 
nominations because it is critical that these Sixth Circuit vacancies 
are filled as expeditiously as possible.
  The Sixth Circuit has a vacancy rate of 25 percent, and the four 
vacancies are all deemed judicial emergencies by the Administrative 
Office of the U.S. Courts. Among the twelve United States Courts of 
Appeal, the Sixth Circuit is last in the timeliness of its disposition 
of cases. For the 12-month period ending September 30, 2003, the median 
time interval from filing of Notice of Appeal to final disposition was 
16.8 months. This was nearly 10 months longer than the Fourth Circuit 
Court of Appeals which was the fastest court that year at 7 months. By 
comparison, the average disposition time for appeals in all Circuits 
was about 10\1/2\ months.
  Mike Cox, the Attorney General for the State of Michigan, wrote to 
the committee last year:

       My office alone has over 430 cases currently pending before 
     the Sixth Circuit Court of Appeals. Those cases range the 
     gamut of the law, from habeas matters involving horrendous 
     murders to cases involving matters of broad public policy. . 
     . . [O]n behalf of the citizens of my state, I urge you to 
     quickly approve Judge Saad's nomination, and begin easing the 
     vacancy crisis that has lingered far too long at the Sixth 
     Circuit.

  District judges and U.S. attorneys within the Sixth Circuit have 
publicly stated that the vacancy rate in the Sixth Circuit has slowed 
the administration of justice. Accordingly, nine members of Michigan's 
Congressional delegation have written to the Judiciary Committee, 
expressing their deep concern over the persistence of the Michigan 
vacancies and urging us to confirm President Bush's Michigan nominees. 
Under such circumstances, with the understanding that we will continue 
to work to resolve the Michigan Senators' concerns, we simply must move 
forward on these nominations and confirm Judge Saad, Judge Griffin, and 
Judge McKeague to the Sixth Circuit.
  I yield the floor.
  The PRESIDING OFFICER. By unanimous consent, the call for a quorum 
has been waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of Richard A. Griffin, of Michigan to be United States 
Circuit Judge for the Sixth Circuit shall be brought to a close.
  The yeas and nays are required under the rule.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. REID. I announce that the Senator from North Carolina (Mr. 
Edwards) and the Senator from Massachusetts (Mr. Kerry) are necessarily 
absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 54, nays 44, as follows:

                      [Rollcall Vote No. 161 Ex.]

                                YEAS--54

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Campbell
     Chafee
     Chambliss
     Cochran
     Coleman
     Collins
     Cornyn
     Craig
     Crapo
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Kyl
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Murkowski
     Nelson (NE)
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner

                                NAYS--44

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Byrd
     Cantwell
     Carper
     Clinton
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Graham (FL)
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Mikulski
     Murray
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Stabenow
     Wyden

                             NOT VOTING--2

     Edwards
     Kerry
  The PRESIDING OFFICER. On this vote, the yeas are 54, the nays are 
44. Three-fifths of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is rejected.
  Mr. REID. Mr. President, I move to reconsider the vote and to lay 
that motion on the table.
  The motion to lay on the table was agreed to.

[[Page 16982]]



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