S8582 CONGRESSIONAL RECORD — SENATE July 22, 2004 it—to set the record straight about Ohio—nor their Senators—were any ‘‘a caseload that is excessive by any stand- their support of Mr. Wilson’s out- part of it. ard.’’ Judge Merritt also wrote that the rageous claims. In the name of fair- They are all suffering for it, though, court was ‘‘rapidly deteriorating, under- staffed and unable to properly carry out ness, will they? as are the 10 million people from their responsibilities’’; and f Michigan. Whereas, Decisions from the Sixth Circuit The Michigan legislature has in fact are slower in coming, based on less careful NOMINATIONS TO THE SIXTH passed a resolution calling on us, the deliberation, and, as a result, are less likely CIRCUIT COURT U.S. Senate, to confirm these nomi- to be just and predictable. The effects on our Mr. MCCONNELL. Mr. President, on nees. I ask consent that a copy of this people, our society, and our economy are far- another matter, we will be voting later reaching, including transaction costs. Liti- resolution from the Michigan State gation increases as people strive to continue this morning on the nominations of Senate be printed in the RECORD. doing business when the lines of swift justice Henry Saad, David McKeague, and There being no objection, the mate- and clear precedent are being blurred; and Richard Griffin to the Sixth Circuit rial was ordered to be printed in the Whereas, President Bush has done his part Court of Appeals. RECORD, as follows: to alleviate this judicial crisis. Over the past two years, he has nominated eight qualified As this chart shows, the Sixth Cir- SENATE RESOLUTION NO. 127 cuit covers Michigan, Ohio, Kentucky, people to the Sixth Circuit Court of Appeals, Whereas, The Senate of the United States with three of them designated to address ju- and Tennessee. is perpetuating a grave injustice and endan- For the last 2 years, the Sixth Cir- dicial emergencies. Four of these nominees gering the well-being of countless Ameri- continue to languish without hearings be- cuit has been trying to function with 25 cans, putting our system of justice in jeop- cause of the obstruction of the two Michigan percent of its seats empty. That va- ardy in Michigan and the states of the Sixth Senators; Now therefore, be it cancy rate is, as it has been, the high- Circuit of the federal court system; and Resolved by the Senate, That we memori- est vacancy rate in the Nation. Not Whereas, The Senate of the United States alize the United States Senate and Michi- surprisingly, the Judicial Conference is allowing the continued, intentional ob- gan’s United States Senators to act to con- has declared all four of these vacant struction of the judicial nominations of four tinue the confirmation hearings and to have fine Michigan jurists: Judges Henry W. Saad, a vote by the full Senate on the Michigan seats to be ‘‘judicial emergencies.’’ Susan B. Neilson, David W. McKeague, and nominees to the United States 6th Circuit For the last 3 years, I have taken to Richard A. Griffin, all nominated by the Court of Appeals; and be it further the floor to decry the crushing burden President of the United States to serve on Resolved, That copies of this resolution be under which the Sixth Circuit operates. the United States 6th Circuit Court of Ap- transmitted to Michigan’s United States The years change but one seemingly peals; and Senators and to the President of the United immutable fact remains: The Sixth Whereas, This obstruction is not only States Senate. Circuit remains the slowest circuit in harming the lives and careers of good, quali- Mr. MCCONNELL. Mr. President, the Nation by far. According to the Ad- fied judicial nominees, but it is also pro- that is 31 million people, who continue ministrative Office of the Courts, last longing a dire emergency in the administra- to suffer because our colleagues on the tion of justice. This emergency has brought other side refuse to confirm any of year the Sixth Circuit was a full 60-per- home to numerous Americans the truth of cent slower than the national average. the phrase ‘‘justice delayed is justice de- these four Michigan nominees to the According to the AOC, the national av- nied’’; and Sixth Circuit. erage for disposing of an appeal is 101⁄2 Whereas, Both of Michigan’s Senators con- Indeed, two of the seats we are talk- months, but in the Sixth Circuit it tinue to block the Judiciary Committee of ing about were not even involved in takes almost 17 months to decide an the United States Senate from holding hear- this dispute. President Clinton never appeal. That means in another circuit, ings regarding these nominees. This refusal nominated anyone to the seat to which if you file your appeal at the beginning to allow the United States Senate to com- Henry Saad was nominated. That va- plete its constitutional duty of advice and of the year, you get your decision cancy arose on January 1, 2000. consent is denying the nominees the oppor- And the seat to which David around Halloween. But in the Sixth tunity to address any honest objections to Circuit, if you file your appeal at the McKeague was nominated did not even their records or qualifications. It is also de- become vacant until the current Bush same time, you get your decision after nying other Senators the right to air the rel- administration on August 15, 2001. the following Memorial Day, over a evant issues and vote according to their con- So what the Senators from Michigan half a year later. If you can believe it, sciences. This is taking place during an emergency in the United States 6th Circuit seek to do is hold up one-fourth of an each year the disparity between the entire circuit because of a past intra- Sixth Circuit and its sister circuits Court of Appeals with the backlog of cases; and delegation dispute about two of these gets worse. Whereas, We join with the members of six seats, the genesis of which occurred In 2001 and 2002, the Sixth Circuit was Michigan’s congressional delegation who many years ago. the slowest circuit in the country, just wrote Chairman Orrin Hatch on February 26, As to disputes on judicial nominees, like last year. In those years, the aver- 2003, to express their concern that ‘‘if the the Senators from Michigan do not age time for decision was 15.3 and 16 President’s nominations are permitted to be have a monopoly on disappointment. months, respectively, but last year the held hostage, for reasons not personal to any nominee, then these judicial seats tradition- There are several Republican nominees delay jumped up to almost 17 months. who were nominated by George H.W. So clearly my constituents and the ally held by judges representing the citizens of Michigan may be filled with nominees Bush, who waited a year or more for a other residents of the circuit are suf- from other states within the Sixth Circuit. hearing, and who never got one. I note fering more and more as the years go This would be an injustice to the many citi- Sixth Circuit nominee John by. zens who support these judges and who have Smietanka, D.C. Circuit nominee John What is the reason for this sorry given much to their professions and govern- Roberts and Fourth Circuit nominee state of affairs? An intra-delegation ment in Michigan’’; and Terry Boyle, just to name a few. dispute from years ago when nearly a Whereas, We are concerned about the Sixth The remedy for disappointment is quarter of the current Senate wasn’t Circuit as a whole, a circuit court under- not to take out your frustration on the even here. Nor, I might add, was the staffed, with 4 of its 16 seats vacant, knowing that the Sixth Circuit ranks next to last out populace of an entire circuit. Nor is it current President around for that dis- of the 12 circuit courts in the time it takes to demand that a President cede his pute either. He, too, has nothing to do to complete its cases. Since 1996, each active constitutional power to another with it. judge has had to increase his or her number branch. It is to do what this President This dispute drags on year after year. of decisions by 46%—more than three times has done: re-nominate the person when As I understand it, although only two the national average. In the recent past, the your party is in the Oval Office. seats were involved in this dispute, six Sixth Circuit has taken as long as, 15.3 Let us be clear. We are not talking nominees, including four circuit nomi- months to reach a final disposition of an ap- about any particular problems with the nees, continue to be bottled up. peal. With the national average at only 10.9 nominees, including Judge Saad, who Frankly, I don’t know whose fault it months, this means the Sixth Circuit takes over 40% longer than the national average to would be the first Arab-American on was it has been so long. But I do know process a case; and any Federal circuit court and who has that neither the 4 million people in Whereas, The last time the Sixth Circuit been endorsed by both the Chamber of Kentucky, nor the 6 million people in was this understaffed, former Chief Judge Commerce and the United Auto Work- Tennessee, nor the 11 million people in Gilbert S. Merritt said that it was handling ers. That is a pretty tall order.

VerDate jul 14 2003 00:32 Jul 23, 2004 Jkt 029060 PO 00000 Frm 00006 Fmt 4624 Sfmt 0634 E:\CR\FM\G22JY6.011 S22PT1 July 22, 2004 CONGRESSIONAL RECORD — SENATE S8583 Quite frankly, it wouldn’t matter other Republican Senators may invoke the influence she had on him was ap- who from Michigan the President put it the next time there is a Democrat in parent throughout his life. He attended in the slot: if his name were Henry the White House. So I urge my Demo- high school outside of Sacremento, and Ford rather than Henry Saad the result crat friends to be wary of the steps graduated from Cal State at Sac- would be the same—my colleagues they are taking because they are lead- ramento. He went the extra mile to from Michigan would filibuster the ing us down a dangerous path from participate in the ROTC program at nominee. which there may be no return. UC-Davis, because his own school had Why? Presumably because the Michi- The PRESIDING OFFICER. The Sen- abolished ROTC during the Vietnam gan Senators didn’t get to pick Judge ator from Nevada. war. Saad or other Michigan nominees to f He graduated in 1980 as a distin- the Sixth Circuit. guished military graduate and was What we are talking about, then, is APPROVAL OF JUDGES commissioned as a regular Army mili- Senators wanting to adorn themselves Mr. REID. Mr. President, I can re- tary intelligence officer. He met Cyn- with the power of co-nomination. member a famed lawyer named Melvin thia while he was in officers’ basic Let us get back to first principles. Belli who came to Las Vegas to try a course in Arizona, and they married in Democrat Senators do not get to pick case. The law at the time was you had 1981. His career in the Army took Cyn- circuit court judges in Republican ad- to associate with a local attorney. thia, Nick, and Lena to Turkey, Ger- ministrations. In fact, Republican Sen- Belli was very articulate and was so many, and South Korea; and his last ators—myself included—do not get to good at speaking to the court and the deployment was to Kuwait and to Iraq. pick circuit court judges in Republican jury. When he finished, the Las Vegas Jon died two weeks shy of serving 24 administrations. lawyer stood and said, well, what he years in the U.S. Army and only 12 The Constitution gives the power to meant to say. This same lawyer said: days from his change of command. For the President, and the President alone, When in doubt, wave your arms, almost 2 years he successfully led the to nominate. We all know as a matter scream and shout. Army’s only deployable echelons- of custom that Senators have a good I think that is what we heard today above-corps contingency force protec- deal of influence over who gets to be a on the Senate floor. tion military intelligence brigade. The district judge but little or no influence But what is really present in the Sen- men and women who served under him, over who gets to be a circuit judge. ate is the fact that we have approved as well as his colleagues and senior of- Presidents of both parties have been 199 judges. We have turned down 6. ficers, testified to his leadership in a unwilling to delegate the picking of There are crocodile tears that really time of war. One soldier called it a circuit court judges to Senators. It is a are not necessary. privilege to be under Colonel Jones’ Presidential prerogative and we In this situation, if we followed the command, and described his strength shouldn’t rewrite the Constitution to Republican rule established by the and leadership as going well beyond allow Senators—especially those of the Thurmond rule, there would be no what this soldier had seen in any other opposite party—to nominate judges. judges approved during the month of military officer. By tradition, the President may con- July. But we have indicated that we Throughout the war, in addition to sult with individual Senators. But the would be willing to approve judges dur- his mission, Jon’s focus was on the tradition of ‘‘consultation’’ does not ing the month of July, and we have health, welfare, and safety of every sol- transform individual Senators into co- done that. I have spoken to a number dier and civilian who served with him. Presidents. of Republican Senators who indicated When his brigade was deployed for 9 The President is not required to we would do that. The situation involv- months to support Operation Enduring share his constitutional power with ing these three involve not only sub- Freedom and Operation Iraqi Freedom, Senators, or with a ‘‘non-partisan’’ stance but procedure—199 to 6. That is he succeeded in that mission and commission for that matter. the rule. brought every one of his soldiers home. We have started a new precedent On behalf of Senator DASCHLE, I ask A month after bringing his brigade around here by filibustering judges; unanimous consent Senator LANDRIEU home, Jon was diagnosed with an ag- this is something that I and the vast be recognized for 10 minutes and Sen- gressive brain tumor. He was entitled majority of the Republican caucus op- ator SCHUMER be recognized for 15 min- to retirement, but he chose instead to posed during the Clinton administra- utes. stay in the Army. As he told a col- tion and refused to engage in, although The PRESIDING OFFICER. Without league: ‘‘Quitting was not an option.’’ Republicans had profound differences objection, it is so ordered. Another person might have headed for with many Clinton nominees. The Senator from Louisiana is recog- the shore and waited for his time in In fact, 95 percent of the current Sen- nized. comfortable surroundings, but this was ators who never voted for a judicial fil- f not the path for Jon Jones. ibuster are Republicans. At the time of his diagnosis, he had a COLONEL JON M. ‘‘JAKE’’ JONES Let me say that again. battalion preparing to redeploy to Iraq, Ninety-five percent of the current Ms. LANDRIEU. Mr. President, I rise and the thought of leaving them went Senators who never voted for a judicial today to honor an exemplary soldier, a against everything he stood for. In filibuster are Republicans. loyal American, a loving father, and a fact, in the months preceding his Our Democrat friends have started devoted husband. Our friend and neigh- death, in between his own treatments this troubling precedent. They have bor, Colonel Jon Jones passed away on and surgeries, Jon went to Kuwait and filibustered seven nominees and are June 6 after a courageous battle with Iraq several times to support and bol- now approaching double digits. brain cancer that he waged on his own ster his troops. If my Democrat friends want to set terms. Until the week of his death, Jon Before he passed away, Jon was nom- another precedent, namely that Sen- lived life to the fullest and did not inated for the Distinguished Service ators in opposite parties get to pick a allow cancer to define him or to dimin- Medal, for unparalleled dedication to President’s circuit court nominees, I ish his dream. Rather, he chose to be a duty. This citation states that his ac- have news for you: this precedent may husband, father and soldier until the complishments will have a lasting ef- well be used when there’s a Democrat end. His death has been a profound loss fect on national security formulation in the Oval Office whether that is next to his colleagues in the Army, his at the highest levels. Later today, in a year or next decade. neighbors, his friends, and especially to room near this distinguished Chamber, In closing, I don’t get to pick Repub- his family. I say to his wife Cynthia, to Jon’s widow Cynthia will accept this lican circuit nominees, and I don’t his two children Nick and Lena, who medal on her husband’s behalf. think Democrats should get to do so in are here with us today, our Nation is Jon’s commanding generals, some of a Republican administration either. grateful for your family’s service and whom are also with us today, accepted That is the President’s job. sacrifice. his decision to stay in the Army and The Senate may establish a contrary Jon was born and raised in Cali- continue in command throughout his precedent today. But if it does, I and fornia. His mother was a teacher, and treatments. Perhaps they would have

VerDate jul 14 2003 00:32 Jul 23, 2004 Jkt 029060 PO 00000 Frm 00007 Fmt 4624 Sfmt 0634 E:\CR\FM\G22JY6.014 S22PT1