[Congressional Record (Bound Edition), Volume 151 (2005), Part 9]
[Senate]
[Pages 12107-12115]
[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

                                 ______
                                 

 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

[[Page 12108]]

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 3 or 4 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 
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 2 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

[[Page 12109]]

       (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.

  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

[[Page 12110]]

     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.
  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 6 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

[[Page 12111]]

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 State 
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 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

[[Page 12112]]

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 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

[[Page 12113]]

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 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,

[[Page 12114]]

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 30 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.
  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.

[[Page 12115]]

  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).
  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.

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