July 22, 2004 CONGRESSIONAL RECORD — SENATE S8585 I hope the Commission’s report is a call. We do not want to be in the ‘‘what This President—regretfully, in many clarion call. Let’s get our act together. if’’ situation. God forbid there is an- instances—has not consulted the Sen- Again, this is not a partisan issue. This other terrorist attack and the next ate. The two Senators from — should not instigate fighting with one morning we say: What if? What if we they happen to be of a different party another. We should just do it. had done the job? What if the attack than the President but we know they I wish the White House in their budg- was by shoulder-held missiles? And we enjoy working with the other party— ets had allocated more money. When say: What if we had done the job. What were not consulted. I know it can be people in the Senate, both Democrat if the attack was from ships and ports? done. We have done it in my State of and Republican, said, We need to do We say: What if we had done the job on . We don’t have a single va- this, that, and the other, had the Presi- port security or on the rails? Or be- cancy in either the district courts or dent said, Yes, sir, right on—but we do cause someone got across our borders the Second Circuit because finally, not have that. We do not have leader- and shouldn’t have? We do not want to after I said I was not going to allow ship on homeland security. That is be in a ‘‘what if’’ situation. judges to go through unless I was con- what the Commission’s report shows. f sulted, the White House came and con- Being a great leader and being a JUDICIAL NOMINATIONS sulted, and there is a happy result. All strong leader does not just mean fight- the vacancies are filled. The judges ing wars overseas in this brave new Mr. SCHUMER. Mr. President, my tend to be conservative, but they are post-September 11 world; it means colleague from Michigan is here, and I mainstream people. I may not agree tightening things up at home. The bot- know she will probably want to speak with them on a whole lot of issues, but tom line is simple: Why aren’t we pro- on the three votes on judges. they have all gone forward. In Michi- tecting our airplanes from shoulder- The first point I make is, I would much rather be debating the Homeland gan we have had no consultation. held missiles which we know the ter- Today when I vote against these Security bill than these judges. Where rorists have? Why aren’t we saying three nominations, I am not just back- are our priorities in this body? What more than 5 percent of the big con- ing up two Senators from Michigan; I are we doing? We have had weeks and tainers that come to our ports on the am defending the Constitution. That is weeks where many have called for east coast, the west coast, the gulf what all of us who vote this way will bringing Homeland Security appropria- coast, should be inspected to see if they do. Because for the President to say on tions to the Senate. Instead, we have might contain materials that could judges, it is my way or the highway, no been debating all the political foot- hurt us? Why aren’t we doing more to compromise, is just not what the balls. I know it is a Presidential elec- protect the borders? My State of New Founding Fathers intended. It is not tion year, I know it is election season, York has a large northern border. They good for America. It tends to put—who- but some things should have a higher have not allocated the dollars, the bot- ever is President—extreme people on calling. tom line is they do not have enough the bench instead of the moderate peo- manpower at the borders to prevent On this particular issue, I make one point before yielding the floor to my ple we need. terrorists from sneaking in. They are I regret that we have come to vote on colleague from Michigan. Anyone who doing a great job with the resources these judges, but I have no qualms that thinks this is a tit-for-tat game at they have, but Lord knows they don’t I will vote and recommend to my col- least misreads the Senator from New have them. We are not doing any of leagues that we vote against all three. York. Were there bad things done on these things. I suggest the absence of a quorum. I point out one other thing the Com- judges when was President The PRESIDING OFFICER (Mrs. mission has mentioned—here, Congress by the Republican-controlled Senate? DOLE). The clerk will call the roll. is as much to blame as the White You bet. But that does not motivate The assistant legislative clerk pro- House—and that is the allocation of me in terms of what we ought to do in ceeded to call the roll. homeland security funds. The Commis- the future. Mr. REID. I ask unanimous consent sion is very strong on this issue. The What motivates me is that in the that the order for the quorum call be moneys that go to police, fire, and the issue of appointing judges—and I re- dispensed with. others who are our first responders—we mind the American people that now 200 The PRESIDING OFFICER. Without learned in New York how valuable they judges have been approved and 6 have objection, it is so ordered. were. The report today will show the been rejected. My guess is the Found- Mr. REID. Would the Chair advise number of people who died below where ing Fathers, given that they gave the the Senator from Nevada what the sta- the planes hit the World Trade Center Senate the advice and consent process, tus of the floor is at this time? towers was few—too many, but few— would have imagined a greater percent- The PRESIDING OFFICER. There because of the great job the police and age should be rejected. are 2 minutes remaining under morn- the firefighters did. Yet we are treating I am always mindful of the fact that ing business. that money as pork barrel. one of the earliest nominees to the U.S. Mr. REID. I yield that time back. My State has greater needs than, say, Supreme Court, Mr. Rutledge, from the The PRESIDING OFFICER. Time is the State with the smallest population, neighboring State of the Presiding Of- yielded back. Wyoming. Yet Wyoming gets much ficer, South Carolina, nominated by f more money on a per capita basis. To President George Washington, was re- the credit of the administration, that jected by the Senate because they CONCLUSION OF MORNING did not happen the first year we allo- didn’t like his views on the Jay Treaty. BUSINESS cated homeland security money. Mitch That Senate, which had a good number The PRESIDING OFFICER. Morning Daniels, a true conservative, the head of Founding Fathers in it—the actual business is closed. of OMB, says he does not want to waste people who wrote the Constitution, f these dollars. He is sending dollars to many of them became Senators the the places of greatest need. I might next year or two—didn’t have any EXECUTIVE SESSION have wanted more dollars, but at least qualms about blocking a judge they the dollars that were allocated were al- thought was unfit. located fairly. But now we have slipped Now all of a sudden when this body NOMINATION OF HENRY W. SAAD away from that. Frankly, we do not stops 6 of 200, we hear from the other TO BE UNITED STATES CIRCUIT hear the voice of Tom Ridge, who was end of Avenue: That is JUDGE FOR THE SIXTH CIRCUIT the successor as we created a new obstructionist. The PRESIDING OFFICER. Under Homeland Security Department, say- That is not obstructionist. That is the previous order, the Senate will pro- ing, allocate this money fairly. We do doing our job. The Constitution didn’t ceed to executive session and resume not hear the voice of the President, and give the President the sole power to ap- consideration of Calendar No. 705, we do not hear the voices of the House point judges. It was divided. In fact, for which the clerk will report. and Senate. much of the Constitutional Convention The assistant legislative clerk read This wonderful report is very critical the Founding Fathers thought the Sen- the nomination of Henry W. Saad, of of what our Nation is doing on home- ate ought to appoint the judges and Michigan, to be United States Circuit land security. It is saying we are not only at the last minute did they say Judge for the Sixth Circuit. doing enough in area after area. I hope the President, with the advice and con- The PRESIDING OFFICER. Under and pray this report will be a wakeup sent of the Senate. the previous order, the time until 11

VerDate jul 14 2003 01:48 Jul 23, 2004 Jkt 029060 PO 00000 Frm 00009 Fmt 4624 Sfmt 0634 E:\CR\FM\G22JY6.019 S22PT1 S8586 CONGRESSIONAL RECORD — SENATE July 22, 2004 a.m. shall be equally divided between Sixth Circuit—there are four Michigan with objections, whether two Senators the chairman and the ranking member vacancies on the Sixth Circuit—to have from a State who have objections or his designee. a bipartisan solution. Two have been should be overridden and the nomina- Mr. REID. Madam President, on be- proposed to the White House. Senator tion should proceed. That is an issue half of Senator LEAHY, I designate 5 STABENOW and I have proposed that which affects all of us, and all of us minutes to the Senator from Michigan, there be a bipartisan commission ap- should give a great deal of thought as Mr. LEVIN. If there is any time remain- pointed in Michigan to make rec- to whether, if two Senators from a ing on our side, following his presen- ommendations on these nominations. State object to a nominee, that nomi- tation, the Senator from New York is Whether these two women succeed in nation should proceed. That gets to the yielded the remainder of the time. getting those recommendations is not advise and consent clause of the Con- The PRESIDING OFFICER. Without the point and it is not assured. We stitution. But when blue slips are re- objection, it is so ordered. don’t know. Recommendations would turned, which is the case with these The Senator from Michigan. not be binding upon the President, nor two judges, there was still a refusal to Mr. LEVIN. Madam President, the on the Senate. They are simply rec- hold hearings. That is unacceptable. issues which we are going to vote on ommendations. That has been rejected today relate to a principle. The prin- That tactic should not work, and I by the White House. hope will not be invoked on ciple is that we should provide hearings When Senator LEAHY was the chair- to people who are nominated by Presi- these three nominations. man, when Democrats were in the ma- The PRESIDING OFFICER. The time dents. When those hearings are denied jority in the Senate, he made a sugges- of the Senator has expired. in order to preserve vacancies so that a tion, a proposal to the White House as Mr. LEAHY. Madam President, the subsequent President can make the ap- to how to solve this problem. The handling of the nominations of Henry pointments, that is wrong. That is White House rejected that one as well. Saad, Richard Griffin, and David what happened with Clinton appointees Senator STABENOW and I have pur- McKeague in the Judiciary Committee to Michigan judgeships. Two women, sued bipartisan solutions to this dead- and here on the Senate floor sets an highly qualified, were appointed. One lock. We are going to continue to pur- unfortunate precedent, and will be long was denied a hearing over 4 years, the sue solutions. But what we will not do remembered in the annals of this longest time in the history of the Sen- and the Senate should not do, in terms Chamber for the double standard it em- ate, never given a hearing by the Judi- of the principle involved here of deny- bodies. In collusion with a White House ciary Committee. The second nominee, ing hearings year after year after year of the same party, the Senate’s Repub- highly qualified, was denied a hearing to nominees in the Judiciary Com- licans have engaged in a series of for over a year and a half by the Judi- mittee in order to keep those seats va- changed practices and broken rules. ciary Committee. cant so the next President can make This happened in a number of States. The home-State Senators of these the appointment, this principle, it nominees opposed proceeding on them It happened to a nominee from Ohio, seems to me, is not in all of our inter- whose name was Markus, who testified any further until and unless they are ests. able to reach a bipartisan solution with as to why he was denied a hearing be- Even Judge Gonzales has acknowl- the White House, but their interests cause he asked the Republicans on the edged there were wrongs. He said: That have been disregarded. In the process Judiciary Committee who were in the was wrong. That was wrong to deny Ju- Republicans have trampled on years of majority as to why he was never given diciary Committee hearings. That is tradition, practice and comity. This a hearing. He was nominated for an not right. Ohio vacancy to the Sixth Circuit. And he is right. We are going to try sort of behavior may not easily be re- There are four States in our circuit: to correct that wrong. It can be cor- paired, but must be exposed. Before I discuss the specifics of the Ohio, Kentucky, Tennessee, and Michi- rected in a bipartisan way. But for Michigan nominations, I would like to gan. He testified in front of the Judici- these nominations to simply be ap- review the recent history of Republican ary Committee as to what happened, proved and for cloture to be invoked is rule breaking, bending, and changing why he was never given a hearing. not the way to achieve a bipartisan so- . . . Senator DEWINE and his staff and Sen- with regard to nominations for lifetime lution. 1 ator HATCH’s staff and others close to him One final comment, if I have another judicial appointments. Over the last 3 ⁄2 were straight with me. Over and over again minute. How much time do I have re- years, the good faith efforts of Senate they told me two things: There will be no maining? Democrats to repair the damage done more confirmations to the 6th Circuit during The PRESIDING OFFICER. The Sen- to the judicial confirmation process the Clinton Administration, and this has ator has 11⁄2 minutes remaining. over the previous 6 years has been sore- nothing to do with you; don’t take it person- ly tested and met with nothing but di- ally—it doesn’t matter who the nominee is, Mr. LEVIN. I thank the Presiding Of- what credentials they may have or what sup- ficer. visive partisanship. Rule after rule has port they may have. Madam President, for over 4 years, been broken or twisted until the proc- . . . On one occasion, Senator DEWINE told we made efforts to get hearings first ess so long agreed upon is hardly rec- me ‘‘This is bigger than you and it’s bigger for Judge White, who is a court of ap- ognizable anymore. than me.’’ Senator KOHL, who had kindly peals judge in Michigan, and for Kath- The string of transparently partisan agreed to champion my nomination within leen McCree Lewis, who is a noted ap- actions taken by the Senate’s Repub- the Judiciary Committee, encountered a pellate lawyer from Michigan in the lican majority took a wrong turn in similar brick wall. . . . The fact was, a deci- sion had been made to hold the vacancies Sixth Circuit. Two pages of efforts January of last year. It was then that and see who won the presidential election. were made to get hearings. I am not one hearing was held for three con- With a Bush win, all those seats could go to going to read them all. All I can say is, troversial circuit court nominees, Bush rather than to Clinton nominees. month after month after month Sen- scheduled to take place in the course of That is not an acceptable tactic. It ator DASCHLE, Senator LEAHY, and oth- a very busy day in the Senate. There should not be allowed to succeed. That ers pleaded with the Republican major- was no precedent for this in the years is the fundamental issue with these ity, the majority leader, and the chair- that Republicans served in the major- nominees, as to whether that tactic of man of the Judiciary Committee for ity and a Democrat was in the White denying hearings—in one case for over hearings. We came to the floor and House. 4 years and another case for a year and made speeches, even after the Then, two of the nominees from that a half, to two highly qualified women was returned from Senator Abraham. hearing were voted out of the com- appointed by President Clinton—is There is a blue-ship issue here be- mittee in clear violation of committee going to work. Senator STABENOW and I cause Senator Abraham did not origi- rules. Despite his prior statements ac- are determined that it should not nally return the blue slip on these knowledging the proper operation of work. But we are also determined to judges. But even after the blue slip was rule IV in February, which should oper- try to accomplish a bipartisan solu- returned, there were no hearings pro- ate to preserve the minority’s right to tion. vided. debate, the chairman declared that There is a rare opportunity here, be- There is a huge issue always, whether Rule IV no longer applied. I spent cause of the number of vacancies to the blue slips were returned or returned months working to reach an agreement

VerDate jul 14 2003 01:48 Jul 23, 2004 Jkt 029060 PO 00000 Frm 00010 Fmt 4624 Sfmt 0634 E:\CR\FM\G22JY6.022 S22PT1 July 22, 2004 CONGRESSIONAL RECORD — SENATE S8587 to move forward the nominees voted consistent practice in the past by We will hear a lot of arguments from out in violation of rule IV and reach an striking the sentence that provided: the other side about the history of the understanding that this important rule ‘‘No further proceedings on this nomi- blue slip, and of the practices followed would not be violated again. However, nee will be scheduled until both blue by other chairmen, including Senator in connection with the nomination of slips have been returned by the nomi- KENNEDY and Senator BIDEN. What I William Pryor to the Eleventh Circuit nee’s home state senators.’’ Now he doubt we will hear from the other side the chairman again overrode the rights just asks that the blue slip be returned of the aisle is the plain and simple of the minority in order to rush to as soon as possible, disregarding years truth of the two conflicting policies judgment on a controversial circuit of tradition and respect for the inter- the Republicans have followed. While it court nominee. The assurances given to ests of the home-State Senators. Can is true that various chairmen of the us that minority rights would be re- there be any other explanation for this Judiciary Committee have used the spected and the Senate would not take other than the change in the White blue-slip in different ways—some to up nominations sent to the Senate House? It is hard to imagine. work unfairness, and others to attempt floor in violation of our rights were This change in policy has worked a to remedy it—it is also true that each broken. severe unfairness on the interests of of those chairmen was consistent in his The Republican majority also sup- Senators LEVIN and STABENOW. They application of his own policy—that is, ported and facilitated the unprece- objected to the nominations of Henry until now. dented renomination and consideration Saad, Richard Griffin, and David In addition, I think the Senate and of to a seat on the U.S. McKeague for reasons they have ex- the American people need to recall the Court of Appeals for the Fifth Circuit, plained in detail. From the very begin- party-line vote by which Senate Repub- ning, they have been crystal clear with for which she already had been rejected licans defeated the confirmation to the the President and the White House by the Judiciary Committee. That, too, District Court in Missouri of an out- about their objections, and they have was unprecedented. standing African-American judge done everything possible to reach a The other rule breaking I want to named Ronnie White. In connection compromise. Their concerns ought to discuss is the one directly relevant to with that vote, a number of Republican be respected, not rejected in favor of the Michigan nominees. It is the tradi- partisan political rule-bending. Senators who voted against Judge tion of the ‘‘blue-slip,’’ the mechanism This is not the first time the blue White justified their action as being re- by which home-State Senators were, slip rule has been broken. Last year quired to uphold the role of the Mis- until the last 2 years, able to express the Judiciary Committee, under Re- souri home-State Senators who op- their approval of or opposition to judi- publican leadership, took the unprece- posed the nomination. Any Senator cial nominees from their home States. dented action of proceeding to a hear- who voted against the nomination of For many years, at least since the ing on President Bush’s controversial Ronnie White and does not vote with time of Judiciary Committee Chairman nomination of Carolyn Kuhl to the Senators LEVIN and STABENOW today James Eastland, the committee has Ninth Circuit, over the objection of will need to find another explanation sought the consent of a judicial nomi- Senator BOXER. When the senior Sen- for having opposed Judge White or ex- nee’s home-State Senators by sending ator from California announced her op- plain why suddenly the rules that ap- them a letter and a sheet of blue paper position to the nomination at the be- plied to Judge White do not apply asking whether or not they approve of ginning of a Judiciary business meet- today. the nominee. This piece of paper, called ing, I suggested that further pro- I know Republican partisans hate a blue slip, formalized a courtesy long ceedings on that nomination ought to being reminded of the double standards extended to home-State Senators. It be carefully considered and noted that by which they operated when asked to was honored without exception when the committee had never proceeded on consider so many of President Clin- Chairman HATCH chaired the Judiciary a nomination opposed by both home- ton’s nominees. I know that they would Committee during the Clinton adminis- State Senators once their opposition rather exist in a state of ‘‘confirmation tration. Not once during those six was known. Nonetheless, in one in a amnesia,’’ but that is not fair and that years when the committee was consid- continuing series of changes of practice is not right. The blue slip policy in ef- ering the nominations of a Democratic and position, the committee was re- fect, and enforced strictly, by Repub- President, did the chairman proceed on quired to proceed with the Kuhl nomi- licans during the Clinton administra- a nominee unless two approving, or nation, and a divisive vote was the re- tion operated as an absolute bar to the positive blue slips had been returned. sult. The Senate has withheld consent consideration of any nominee to any One non-returned blue slip, let alone to that nomination after extended de- court unless both home-State Senators one where a Senator indicated dis- bate. had returned positive blue slips. No approval of the nominee, was enough to Continuing with the Saad nomina- time limit was set and no reason had to doom a nomination and prevent any tion, and going further with Griffin and be articulated. consideration. For that matter, it McKeague, the committee made more Remember also that before I became seemed that so long as one Republican profound changes in its practices. chairman in June of 2001, all of these Senator had an objection, it was hon- When a Democratic President was decisions were being made in secret. ored, even if they were not home-State doing the nominating and Republican Blue slips were not public, and they Senators like Senator Helms of North Senators were objecting, a single objec- were allowed to operate as anonymous Carolina objecting to an African-Amer- tion from a single home-State Senator holds on otherwise qualified nominees. ican nominee from Virginia, or Senator stalled any nomination. There is not a A few examples of the operation of Gorton of Washington objecting to single example of a single time that the blue slip process and how it was nominees from California. Chairman HATCH went forward with a scrupulously honored by the com- When President Clinton was in office, hearing over the objection or negative mittee during the Clinton Presidency the chairman’s blue slip sent to Sen- blue slip of a single Republican home- are worth remembering. Remember, in ators, asking their consent, said this: State Senator during the years that the 106th Congress alone, more than Please return this form as soon as possible President Clinton was the nominating half of President Clinton’s circuit to the nominations office. No further pro- authority. But now that a Republican court nominees were defeated through ceedings on this nominee will be scheduled President is doing the nominating, no the operation of the blue slip or other until both blue slips have been returned by amount of objecting by Democratic such partisan obstruction. the nominee’s home state senators. Senators is sufficient. Republicans Perhaps the most vivid is the story of When President Bush began his term, overrode the objection of one home- the United States Court of Appeals for and Senator HATCH took over the State Senator with the Kuhl nomina- the Fourth Circuit, where Senator chairmanship of this committee, he tion. Republicans outdid themselves Helms was permitted to resist Presi- changed his blue slip to drop the assur- when they overrode the objections of dent Clinton’s nominees for 6 years. ance he had always provided Repub- both home-State Senators and forced Judge James Beaty was first nomi- lican Senators who had an objection. the Saad, McKeague and Griffin nomi- nated to the Fourth Circuit from North He eliminated the statement of his nations out of committee. Carolina by President Clinton in 1995,

VerDate jul 14 2003 01:48 Jul 23, 2004 Jkt 029060 PO 00000 Frm 00011 Fmt 4624 Sfmt 0634 E:\CR\FM\G22JY6.074 S22PT1 S8588 CONGRESSIONAL RECORD — SENATE July 22, 2004 but no action was taken on his nomina- depend upon the occupant of the White In 2000, we had to work hard to get tion in 1995, 1996, 1997, or 1998. Another House. The change in the blue slip Senate Republicans to allow votes on Fourth Circuit nominee from North practice marks only one example of judicial nominees, even in the wake of Carolina, Rich Leonard, was nominated their disregard for the rules and prac- searing criticism of their obstruc- in 1995, but no action was taken on his tices of committees and the Senate. In tionism by the Chief Justice of the nomination either, in 1995 or 1996. The the Judiciary Committee, the Repub- United States Supreme Court. After nomination of Judge James Wynn, lican majority abandoned our historic July 4, 2000, the only judicial nominees again a North Carolina nominee to the practice of bipartisan investigation in confirmed were by consensus. Fourth Circuit, sent to the Senate by the Pryor nomination, as well as the In stark contrast to their practices President Clinton in 1999, languished meaning and consistent practice of pro- in 1996 and 2000, the Republican leader- without action in 1999, 2000, and early tecting minority rights through a long- ship of the Senate is now seeking to 2001 until President Bush withdrew his standing committee rule, rule IV, that force the Senate into confirmations of nomination. required a member of the minority to judicial nominees they know to be A similar tale exists in connection vote to cut off debate in order to bring highly controversial. That is wholly in- with the Fifth Circuit where Enrique a matter to a vote. Republicans took consistent with the Thurmond Rule Moreno, Jorge Rangel and Alston another giant step in the direction of and with their own past practices. Re- Johnson were nominated but never unbridled partisanship through the publican partisans seem intent on an- given confirmation hearings. hearings granted Judges Kuhl, Saad, other contrived partisan political Perhaps the best documented abuses Griffin and McKeague. stunt. They insist on staging cloture are those that stopped the nominations During the past year and a half we votes on judicial nominees late in a of Judge , Kathleen have also suffered through the scandal Presidential election year knowing McCree Lewis and Professor Kent of the theft of staff memoranda and that they have broken rule after rule Markus to the Sixth Circuit. Judge files from the Judiciary computer by and practice after traditional practice White and Ms. Lewis were themselves Republican staff, a matter which is just to force the controversial nomina- Michigan nominees. Republicans in the now under criminal investigation by tions before the Senate. They are man- Senate prevented consideration of any the Department of Justice. It is all ufacturing confrontation and con- of President Clinton’s nominees to the part of a pattern that has included troversy. Like the President, they seek Sixth Circuit for years. bending, changing and even breaking division over cooperation with respect When I became chairman in 2001, I this committee’s rules to gain partisan to the handful of most controversial ju- ended that impasse. The vacancies that advantage and to stiffen the White dicial nominees for lifetime appoint- once plagued the Sixth Circuit have House’s influence over the Senate. ments. been cut in half. Where Republican ob- The partisan Republican motto Reports this week are that the Re- struction led to 8 vacancies on that 16- seems to be ‘‘by any means necessary.’’ publican leadership is setting up uni- judge court, Democratic cooperation If stealing computer files is helpful, do laterally to change the Senate’s his- allowed 4 of those vacancies to be it. If rules protecting the minority are toric rules to protect the minority. Ac- filled. The Sixth Circuit currently has inconvenient, ignore them. If tradi- cording to press accounts, some Repub- more judges and fewer vacancies than tional practices are an impediment, licans leaders are planning to have it has had in years. Those of us who were involved in this break them. Partisan Republicans Vice President CHENEY, acting as process in the years 1995–2000 know seem intent on turning the inde- President of the Senate, declare that that the Clinton White House bent over pendent Senate into a wholly-owned the Senate’s longstanding cloture rule backwards to work with Republican subsidiary of the Presidency and our is unconstitutional and then have his Senators and seek their advice on ap- independent Federal judiciary into an fellow party members sustain that par- pointments to both circuit and district activist arm of the Republican Party. tisan power grab. When this radical court vacancies. There were many Senate Republicans are now intent might-makes-right approach was advo- times when the White House made on violating ‘‘the Thurmond Rule’’ and cated last year, some Republican had nominations at the direct suggestion of the spirit of the cooperative agreement reservations about sacrificing the Sen- Republican Senators, and there are reached earlier this year by which 25 ate’s rights to freedom of debate. Tra- judges sitting today on the Ninth Cir- additional judicial nominees have been ditional conservatives who understand cuit and the Fourth Circuit, in the dis- considered and confirmed. The Thur- the role of the Senate as part of the trict courts in Arizona, Utah, Mis- mond Rule dates back at least to July checks and balances in our Constitu- sissippi, and many other places only 1980 when the Reagan campaign urged tion recognized the enormity of dam- because the recommendations and de- Senate Republicans to block President age that would be caused to this insti- mands of Republicans Senators were Carter’s judicial nominees. Over time, tution by empowering such a partisan honored. Senator Thurmond and Republican dictatorship. From this week’s reports, In contrast, since the beginning of its leaders refined their use of and prac- sensible Senate Republicans are being time in the White House, this Bush ad- tices under the rule to prevent the con- cast aside and overridden by the most ministration has sought to overturn sideration of lifetime judicial appoint- strident. traditions of bipartisan nominating ments in the last year of a Presidency Norm Ornstein observed: ‘‘If Repub- commissions and to run roughshod unless consensus nominees. Consent of licans unilaterally void a rule that over the advice of Democratic Sen- the majority and minority leaders as they themselves have employed in the ators. They attempted to change the well as the chairman and ranking past, they will break the back of com- exemplary systems in Wisconsin, Wash- member of the Judiciary Committee ity in the Senate.’’ Republicans call ington, and Florida that had worked so came to be the norm. The agreement this the so-called ‘‘nuclear action,’’ be- well for so many years. They ignored earlier this year on the 25 additional cause it would destroy the Senate as the protests of Senators like Senator judicial nominees considered and con- we know it. It is unjustified and un- BOXER who not only objected to the firmed was consistent with our tradi- wise. It is ironic that Republicans nominee proposed by the White House, tions and the Thurmond Rule. blocked nearly 10 times as many of but who, in an attempt to reach a true Senate Republicans abused their President Clinton’s judicial nominees compromise, also suggested Republican power in the last year of President as those of President Bush denied con- alternatives. And today, despite the Clinton’s first term, in 1996. They sent. Apparently, clearly Republican best efforts of the well-respected Sen- would not allow a single circuit court partisans will apparently stop at noth- ators from Michigan, who have pro- nominee to be considered by the Senate ing in their efforts to aid and abet this posed a bipartisan commission similar that entire session and only allowed 17 White House in the efforts to politicize to their sister state of Wisconsin, we noncontroversial district court nomi- the Federal judiciary. see the administration has flatly re- nees confirmed in July. No judicial Both of the Senators from Michigan jected any sort of compromise. nominees were allowed a vote in the are respected Members of the Senate. The double standards that the Repub- first 6 months of that session or the Both are fair-minded. Both are com- lican majority has adopted obviously last 5 months of that Presidency. mitted to solving the problems caused

VerDate jul 14 2003 01:48 Jul 23, 2004 Jkt 029060 PO 00000 Frm 00012 Fmt 4624 Sfmt 0634 E:\CR\FM\G22JY6.075 S22PT1 July 22, 2004 CONGRESSIONAL RECORD — SENATE S8589 by Republican high-handedness in nees in 17 months. Indeed, while Repub- publican leader in the Senate has blocking earlier nominees to the Sixth licans averaged 7 confirmations to the termed our efforts ‘‘steady progress.’’ Circuit. Both of these home-State Sen- circuit courts every 12 months for the The White House would be even more ators have attempted to work with the last President, the Senate under Demo- successful if they would work with us White House to offer their advice, but cratic leadership confirmed 17 in its 17 to resolve this situation in the Sixth their input was rejected. They have months with an historically uncoopera- Circuit. suggested ways to end the impasse on tive White House. Senate Democrats had demonstrated judicial nominations for Michigan, in- With a Republican in the White our good faith in confirming 100 of cluding a bipartisan commission along House, the Republican majority shifted President Bush’s judicial nominees in the lines of a similar commission in from the restrained pace it had said our 17 months in the Senate majority. Wisconsin. This is a good idea and a was required for Clinton nominees, into We have now cooperated in the con- fair idea. I am familiar with the work overdrive for the most controversial of firmation of more judicial nominees for of bipartisan screening commissions. President Bush’s nominees. In 2003 President Bush than President Reagan Vermont and its Republican, Demo- alone, 13 circuit court judges were con- achieved working hand in hand with a cratic and Independent Senators had firmed. This year more hearings have Republican Senate majority. We have used such a commission for more than been held for nominees in just 5 already confirmed more judges this 25 years with great success. I commend months than were held in all of 1996 or Congress than were confirmed before the Senators representing Michigan for all of 2000. One hundred and ninety- the presidential elections in 1996. We their constructive suggestion and for eight of President Bush’s nominees fulfilled our commitment in accord their good faith efforts to work with have been confirmed so far—more than with the agreement reached with the this White House in spite of the admin- in all 4 years of President Reagan’s White House to consider 25 additional istration’s refusal to work with them. first term, when he had a Republican judicial nominees already this year. We Some Senators have said we need to Senate to work with, more than in the have demonstrated not only our will- forget the unfairness of the past on Presidency of the first President Bush ingness to cooperate but we have done nominations and start on a clean slate. and more than in the last term of so to achieve historic confirmation But the way to wipe that slate clean is President Clinton. numbers and historically low numbers through cooperation now, and moving Many of the 198 nominees who have of judicial vacancies. I have come to forward together—not with the petu- been confirmed for this President have recognize that no good deed we do in lant, partisan unilateralism that we proceeded by consensus out of com- correcting the Republican abuses of the have seen so often from this adminis- mittee and on the Senate floor. I would past goes unpunished. tration. have hoped that the scores of nominees Unfortunately, this President has Although President Bush promised agreed upon by home-State Senators of also chosen to nominate for some im- on the campaign trail to be a uniter both parties, voted out of committee portant circuit court seats some can- and not a divider, his practice once in unanimously and confirmed without didates who on their merits are not de- office with respect to judicial nominees opposition in the full Senate would has been more divisive than those of serving of lifetime appointments. It ap- have been a lesson for the President. I any President. Citing the remarks of a pears that Judge Saad is one of those would have hoped that the Michigan White House official, The Lansing nominees. Clearly the Senators from Senators’ principled and reasoned op- State Journal reported, for example, Michigan have grave concerns. position to the way the Sixth Circuit I also have concerns about the nomi- that the President is simply not inter- nominations have occurred would have nee, his legal judgment, and his ability ested in compromise on the existing been a starting point from which to to be fair. While Judge Saad was an at- vacancies in the State of Michigan. It reach a compromise. But, as with so torney his practice primarily consisted is unfortunate that the White House is not willing to work toward consensus many other nominees and so many of defending large corporations against with all Senators. other issues, compromise was not employees’ claims of race discrimina- Under our Constitution, the Senate forthcoming from this White House. In- tion, age discrimination, sexual harass- has an important role in the selection stead, they have refused to acknowl- ment and wrongful termination. A re- of our judiciary. The brilliant design of edge the wrong done to President Clin- view of Judge Saad’s cases on the our Founding Fathers established that ton’s nominees to the very same court, Michigan Court of Appeals raises con- the first two branches of Government and they have refused to budge. It is a cerns because he frequently favored would work together to equip the third shame. employers in complaints brought by branch to serve as an independent arbi- The Judiciary Committee has now re- workers, even in the face of extremely ter of justice. As columnist George Will ported more than 200 of President sympathetic facts. has written, ‘‘A proper constitution Bush’s judicial nominees. Most have For example, in Cocke v. Trecorp En- distributes power among legislative, been reported with the support of terprises, a young Burger King em- executive and judicial institutions so Democratic Senators. Some have been ployee was aggressively and repeatedly that the will of the majority can be contentious and some have been so ex- sexually harassed and assaulted by her measured, expressed in policy and, for treme that they have not garnered bi- shift manager. More than once, she re- the protection of minorities, somewhat partisan support and have been prob- ported this treatment to her other limited.’’ The structure of our Con- lematic. We have demonstrated time shift managers who promised to take stitution and our own Senate rules of and again that when we unite and work care of it. The trial court prevented her self-governance are designed to protect together we make progress. Repub- case from going to the jury but Judge minority rights and to encourage con- licans have too often chosen, instead, Saad dissented from an appellate deci- sensus. Despite the razor-thin margin to seek to pack the courts and tilt sion reversing the trial court. Judge of recent elections, the Republican ma- them out of balance and to use un- Saad ignored the legal standard of re- jority is not acting in a measured way founded allegations of prejudice to view followed by the majority and but in disregard for the traditions of drive wedges among Americans for par- would have protected the corporation bipartisanship that are the hallmark of tisan political purposes. from responsibility for the shift man- the Senate. We have more Federal judges cur- ager’s notorious and unlawful behavior. When there was a Democratic Presi- rently serving than at any time in our Also, in Coleman v. Michigan, a fe- dent in the White House, circuit court Nation’s history and we have succeeded male corrections officer brought a sex- nominees were delayed and deferred, in reducing judicial vacancies to the ual harassment suit against her em- and vacancies on the Courts of Appeals lowest level in decades. Even Alberto ployer, the State of Michigan. This of- more than doubled under Republican Gonzales, the White House Counsel, ficer was assaulted and nearly raped by leadership from 16 in January 1995, to conceded that: ‘‘If you look at the total an armed prisoner. According to the of- 33 when the Democratic majority took numbers, I think one could draw the ficer’s complaint, after this terrible at- over part way through 2001. conclusion that we’ve been fairly suc- tack, her supervisor insinuated that Under Democratic leadership, we cessful in having a lot of the presi- she provoked the attack because of her held hearings on 20 circuit court nomi- dent’s nominees confirmed.’’ The Re- attire. The supervisor made the officer

VerDate jul 14 2003 03:15 Jul 23, 2004 Jkt 029060 PO 00000 Frm 00013 Fmt 4624 Sfmt 0634 E:\CR\FM\G22JY6.075 S22PT1 S8590 CONGRESSIONAL RECORD — SENATE July 22, 2004 come to his office on a regular basis to comments. While I do not believe limit individual rights and protections. check the appropriateness of her cloth- Judge Gonzales or the President ever For example, in Wohlert Special Prod- ing and he frequently called her to dis- responded, 2 weeks later Judge Saad ucts v. Mich. Employment Security cuss personal matters, such as her rela- did get around to sending a ‘‘non-apol- Comm’n, he reversed the decision of tionship with her boyfriend. Despite ogy.’’ He wrote: the Michigan Employment Security these serious allegations, the trial I write regarding your and Senator LEVIN’s Commission and held that striking em- court granted summary disposition in recent letter to Alberto R. Gonzales, Counsel ployees were not entitled to unemploy- favor of the State of Michigan. Judge to the President (a copy of which you sent to ment benefits. The Michigan Supreme Saad joined in the Michigan Court of me), relating to an e-mail message that I Court vacated part of Judge Griffin’s Appeals’ per curiam opinion affirming meant to send only to a close personal friend decision, noting that he had inappro- of mine. Unfortunately, this e-mail, which priately made his own findings of fact the trial court’s grant of summary dis- commented on my pending nomination, was position. The corrections officer ap- inadvertently sent to your office. I regret when ruling that the employees were pealed his decision to the Michigan Su- that the e-mail was sent to you and cer- not entitled to benefits. This case preme Court, which reversed and held tainly apologize for any personal concern raises concerns about Judge Griffin’s that her claims constituted sufficient this may have caused you. I have a great willingness to distort precedent to evidence to go to trial. deal of respect for our political institutions reach the results he favors. In another case, Fuller v. McPherson and meant no lack of respect to you. In several other cases, Judge Griffin Hospital, a jury who heard live testi- He cannot bring himself to say he is has gone out of his way to interject his mony was persuaded to conclude that a sorry for his words, to apologize for ac- conservative personal views into his woman had endured sexual harassment cusing a Senator of abusing the system opinions. The appeals courts are the from her immediate supervisor and she so respects, or even for expressing courts of last resort in over 99 percent other superiors. The trial court va- the hope that she would ‘‘pay for her of all Federal cases and often decide cated the jury findings because it found conduct.’’ Instead he is sorry that he cases of first impression. If confirmed, that the plaintiff had not complained was caught, and if what he said may Judge Griffin will have much greater of the harassment while working at the have caused Senator STABENOW ‘‘per- latitude to be a conservative judicial hospital. On appeal, the panel rein- sonal concern.’’ activist. stated the jury’s finding of sexual har- Apart from all of the procedural It is ironic that Judge Griffin’s fa- assment but Judge Saad dissented. Un- problems with this nomination, I have ther who, as Senator in 1968, launched fortunately, his dissent in this case serious concerns about giving lifetime the filibuster of the nomination of Su- was only two sentences and failed to tenure to someone with this stunning preme Court Justice Abe Fortas to address his colleagues’ legal conclu- lack of judgment. serve as Chief Justice. Former Senator sions. I also have concerns about parts of Griffin led a core group of Republican I cannot speak in open session about the record of Richard Griffin. As a Senators in derailing President John- all concerns but I can note a tempera- judge on the Michigan Court of Appeals son’s nomination by filibustering his ment problem, as evidenced by an e- since 1989, Judge Griffin has handled nomination on the floor of the United mail he sent, a copy of which he mis- and written hundreds of opinions in- States Senate. Eventually, Justice takenly sent to Senator STABENOW as volving a range of civil and criminal Fortas withdrew his nomination. I well. In Judge Saad’s e-mail he dis- law issues. Yet, a review of Judge Grif- know that the Republicans here will plays not only shockingly bad man- fin’s cases on the Michigan Court of call any attempt to block Judge Grif- ners, but appalling judgment and a pos- Appeals raises concerns. He has not fin’s nomination ‘‘unconstitutional’’ sible threatening nature. been shy about interjecting his own and ‘‘unprecedented,’’ but his father In the e-mail exchange, Judge Saad is personal views into some of his opin- actually helped set the precedent for writing to someone named Joe, for- ions, indicating that he may use the blocking nominees on the Senate floor. warding him a copy of another e-mail opportunity, if confirmed, to further Finally, I turn to David McKeague, sent by Senator STABENOW in response his own agenda when confronted with his record, and questions. In particular, to a letter of support for Saad’s nomi- cases of first impression. I am concerned about Judge nation. In her response Senator For example, in one troubling case McKeague’s decisions in a series of STABENOW politely and reasonably ex- involving the Americans with Disabil- cases on environmental issues. In plains the basis for her continuing ob- ities Act (ADA), Doe v. Mich. Dep’t of Northwoods Wilderness Recovery v. jection to the nomination, explaining Corrections, Judge Griffin allowed the United States Forest Serv., 323 F.3d 405 that she understands the writer’s ‘‘con- State disability claim of disabled pris- (6th Cir. 2003), Judge McKeague would cerns and frustrations,’’ thanking oners to proceed, but wrote that, if have allowed the U.S. Forest Service to them, and offering her help in the fu- precedent had allowed, he would have commence a harvesting project that al- ture. Apparently this type of courteous dismissed those claims. Griffin au- lowed selective logging and clear-cut- explanation was too much for Judge thored the opinion in this class action ting in areas of Michigan’s Upper Pe- Saad. Here is what he wrote in re- brought by current and former pris- ninsula. The appellate court reversed sponse to the Senator’s explanation: oners who alleged that the Michigan him and found that the Forest Service She sends this standard response to all Department of Corrections denied them had not adhered to a ‘‘statutorily man- those who inquire about this subject. We certain benefits on the basis of their dated environmental analysis’’ prior to know, of course, that this is the game they HIV-positive status. Although Judge approval of the project, which was play. Pretend to do the right thing while Griffin held that the plaintiffs had dubbed ‘‘Rolling Thunder.’’ abusing the system and undermining the stated a claim for relief, his opinion Sitting by designation on the Sixth constitutional process. Perhaps some day she makes clear that he only ruled this Circuit, Judge McKeague joined in an will pay the price for her misconduct. way because he was bound to follow the opinion that permitted the Tennessee I know that Senator STABENOW does precedent established in a recent case Valley Authority (TVA) broadly to in- not need me to defend her, and I doubt decided by his court. Moreover, he terpret a clause of the National Envi- that sort of personal threat concerns went on to urge Congress to invalidate ronmental Policy Act in a way that her, but I think Judge Saad’s message a unanimous Supreme Court decision, would allow the TVA to conduct large- deserves some attention. It shows a written by Justice Scalia, holding that scale timber harvesting operations shocking lack of good judgment, a pro- the ADA applies to State prisoners and without performing site-specific envi- nounced political viewpoint, and a prisons. He wrote, ‘‘While we follow ronmental assessments. Help Alert total absence of respect for the process Yeskey, we urge Congress to amend the Western Ky., Inc. v. Tenn. Valley Author- undertaken by Senators of good faith ADA to exclude prisoners from the ity, 1999 U.S. App. LEXIS 23759 (6th Cir. and good will. class of persons entitled to protection 1999). The majority decision in this As soon as they saw this e-mail mes- under the act.’’ case permitted the TVA to determine sage, both Michigan Senators wrote to In other cases, he has also articu- that logging operations that covered the President’s Counsel, Alberto lated personal preferences that favor a 2,147 acres of land were ‘‘minor,’’ and Gonzales, alerting him to the offensive narrow reading of the law, which would thus fell under a categorical exclusion

VerDate jul 14 2003 01:48 Jul 23, 2004 Jkt 029060 PO 00000 Frm 00014 Fmt 4624 Sfmt 0634 E:\CR\FM\G22JY6.076 S22PT1 July 22, 2004 CONGRESSIONAL RECORD — SENATE S8591 to the environmental impact state- ‘‘has visited the ’area around’ the of sitting Supreme Court Justices. In a ment requirement. The dissent in this RACO site ’at least five times per year’ speech to a law school audience about case noted that the exclusion in the and that he has made plans to vacation the impact of the 2000 elections on the past had applied only to truly ‘‘minor’’ in ’Soliders Park’ located ’near’ the courts, Judge McKeague discussed the activities, such as the purchase or RACO site in early October 1998, where possibility of vacancies on the Court lease of transmission lines, construc- he plans to spend his time ’fishing, ca- over the following year. In doing so he tion of visitor reception centers and noeing, and photographing the area.’’’ felt it necessary to not only refer to— on-site research. Comparing Pape’s testimony with that but to make a chart of—the Justices’ Judge McKeague also dismissed a of the Lujan plaintiff, who had failed to particular health problems, and ghoul- suit brought by the Michigan Natural win standing after he presented general ishly focus on their life expectancy by Resources Commission against the facts about prior visits and an intent highlighting their ages. He says he Manufacturer’s National Bank of De- to visit in the future, Judge McKeague does not believe he was disrespectful, troit, finding that the bank was not rejected Pape’s complaint as too specu- and used only public information. liable for the costs of environmental lative, based on the Court’s holding in There were other, better ways he could cleanup at sites owned by a ‘‘troubled Lujan that: have made the same point, and it is too borrower.’’ See Kelley ex rel. Mich. Nat- [Plaintiffs’] profession of an ‘‘intent’’ to re- bad he still cannot see that. ural Resources Comm’n v. Tiscornia, 810 turn to the places [plaintiffs] had visited be- The people of the Sixth Circuit de- F. Supp. 901 (W.D. Mich. 1993). The fore—where they will, presumably, this time, serve better than this. And the Amer- bank took over the property from Auto be deprived of the opportunity to observe ican people, the independent Federal Specialties Manufacturing Company animals of the endangered species—is simply not enough to establish standing. . . . Such judiciary, the U.S. Senate, all deserve when it defaulted on its loans. The ‘‘some day’’ intentions—without any descrip- better than the double standard that is Natural Resources Commission argued tion of concrete plans, or indeed, even any now squarely on display for all to see. that the bank should be responsible for specification of when the some day will be— Mr. SCHUMER. Madam President, I taking over the cost of cleanup because do not support a finding of the ‘‘actual or yield the time remaining to me to the it held the property when the toxic imminent’’ injury that our cases require. Senator from Michigan. spill occurred, but Judge McKeague In concluding that ‘‘the allegations The PRESIDING OFFICER. All time disagreed. contained in plaintiff’s first amended has expired on the Democratic side. In Miron v. Menominee County, 795 F. complaint fail to establish an actual Mr. LEVIN. Parliamentary inquiry: I Supp. 840 (W.D. Mich. 1992), Judge injury because they do not include an thought there was 15 minutes on each McKeague rejected the efforts of a cit- allegation that plaintiff has specific side. izen who lived close to a landfill to re- plans to use the allegedly affected area The PRESIDING OFFICER. There is quire the Federal Aviation Administra- in the future,’’ Judge McKeague 7 minutes on each side. tion to enjoin landfill cleanup efforts seemed to ignore completely the de- Mr. SCHUMER. Madam President, I until an environmental impact state- tailed fact description that Pape sub- ask unanimous consent, since nobody ment regarding the efforts could be mitted in his amendment complaint. is here and we are voting at 11, that prepared. The citizen contended that if The judge further asserted that there Senator STABENOW be given 4 minutes the statement were prepared, the inad- was no causal connection between the to discuss this issue. equacies of a State-sponsored cleanup injury and the activity complained of, The PRESIDING OFFICER. Without would be revealed and appropriate cor- and that, in any case, the alleged in- objection, it is so ordered. rective measures would be undertaken jury was not redressable by the suit. Ms. STABENOW. I thank the Chair. to minimize further environmental On another important topic, that of Madam President, I thank my col- contamination and wetlands destruc- the scheme of enforcing the civil and league and friend from New York. tion. Holding that the alleged environ- constitutional rights of institutional- I rise to support the distinguished mental injuries were ‘‘remote and spec- ized persons, I am concerned about one senior Senator from Michigan, my ulative,’’ Judge McKeague denied the of Judge McKeague’s decisions. In 1994, friend and colleague, who has spoken requested injunctive relief. (United States v. Michigan, 868 F. Supp. very eloquently about what we are In Pape v. U.S. Army Corps of Engi- 890 (W.D. Mi. 1994)), he refused to allow about to vote on. neers, 1998 U.S. Dist. LEXIS 9253 (W.D. the Department of Justice access to Today we will be asked to vote to Mich.), Judge McKeague seems to have Michigan prisons in the course of its close debate and proceed to a final vote ignored relevant facts in order to pre- investigation into some now notorious on three judges who have been nomi- vent citizen enforcement of environ- claims of sexual abuse of women pris- nated by the President to the Sixth mental protections. Dale Pape, a pri- oners by guards undermines the long- Circuit in Michigan. We are asking vate citizen and wildlife photographer, established system under the Constitu- that colleagues vote no and give us an sued the U.S. Corps of Army Engineers tional Rights of Institutionalized Per- opportunity to work out this situation under the Federal Resource Conserva- sons Act. That law’s investigative and in a bipartisan way. We have been very tion and Recovery Act of 1976 (RCRA), enforcement regime is unworkable if close. I appreciate Chairman HATCH’s alleging that the Corps mishandled the Department of Justice is denied ac- efforts to work with us, Senator hazardous waste in violation of RCRA, cess to State prisons to determine if LEAHY, and others who have worked destroying wildlife in a park near the enough evidence exists to file suit, and with us and proposed bipartisan solu- site. Despite the Supreme Court’s hold- Judge McKeague’s tortured reasoning tions. I still believe we can develop a ing in Lujan v. Defenders of Wildlife made it impossible for the investiga- solution if we do not proceed with this that ‘‘the desire to use or observe an tion to continue in his district. vote today. If we do not vote for clo- animal species, even for purely esthetic I know that concern for the rights of ture, I believe we can continue to work purposes, is undeniably a cognizable in- prisoners who have often committed together in a bipartisan way to resolve terest for purpose of standing,’’ and horrendous criminal acts is not politi- this issue. even though RCRA specifically con- cally popular, but Congress enacted the It is always difficult when the Presi- ferred the right for citizen suits law and expected its statute and its dent nominates people for the bench. against the government for failure to clear intent to be followed. It seems to Oftentimes people will say: Why not implement orders or to protect the en- me that Judge McKeague disregarded give the President his nominees? We vironment or health and safety, Judge legislative history and the clear intent know this is different from the Cabi- McKeague dismissed the case, holding of the law, and that sort of judging is net. I have voted to give the President that plaintiff lacked standing to sue. of concern to me. his team, his Cabinet, because they are Judge McKeague found plaintiff’s I also note my disappointment in his with him for his 4-year term, and they complaint insufficient on several answer to a question I sent him about are part of his team. Except for those grounds, in particular plaintiff’s inabil- a presentation he made in the fall of few exceptions I believed were too ex- ity to establish which site specifically 2000, when he made what I judged to be treme, I supported individuals I person- he would visit in the future. Plaintiff inappropriate and insensitive com- ally would not select to be in a Cabi- had stated in his complaint that he ments about the health and well-being net, but it is his team.

VerDate jul 14 2003 01:48 Jul 23, 2004 Jkt 029060 PO 00000 Frm 00015 Fmt 4624 Sfmt 0634 E:\CR\FM\G22JY6.076 S22PT1 S8592 CONGRESSIONAL RECORD — SENATE July 22, 2004 In the case of the judiciary, this is velop recommendations on the Sixth the State of Michigan. They deserve to the third branch of Government. As we Circuit and nominees we all believe are be voted up or down today. I hope the learn from reading simple high school in the best interest of the people of people will vote for cloture. It is the government books, in the beginning of Michigan and in the best interest of right thing to do. the debate of our Founders, those at the people of the country. We should not be filibustering Fed- the Constitutional Convention gave the I yield back my time, Madam Presi- eral judges. It has never been done be- full authority to the Senate. Then dent, and suggest the absence of a fore, and I recommend to all of our col- there was further discussion and they quorum. leagues to vote for cloture in all three said possibly the President should ap- The PRESIDING OFFICER. The cases. point the third branch of Government. clerk will call the roll. I yield the floor. In the end, they said this is so impor- The assistant legislative clerk pro- CLOTURE MOTION tant that this judiciary, this third ceeded to call the roll. branch of Government, be independent Mr. HATCH. Madam President, I ask The PRESIDING OFFICER. Under of the other two branches that we are unanimous consent that the order for the previous order, the hour of 11 a.m. going to split the authority in half. We the quorum call be rescinded. having arrived, the cloture motion hav- are going to give half to the President The PRESIDING OFFICER. Without ing been presented under rule XXII, the of the United States to make nomina- objection, it is so ordered. Chair directs the clerk to read the mo- tions, and the other half to the Senate Mr. HATCH. Madam President, as tion. to consult and to confirm. chairman of the Judiciary Committee, The assistant legislative clerk read Our concern is that in the case of I will take a couple of minutes before as follows: Michigan, working together has not the vote to express my views with re- CLOTURE MOTION gard to Judge Saad. There is no ques- been happening. It is not about two We the undersigned Senators, in accord- Senators; it is about the people we rep- tion in my mind that Judge Saad is ance with the provisions of rule XXII of the resent. We represent 9 million people in competent, decent, and honorable—a Standing Rules of the Senate, do hereby the State of Michigan whose voices are person of great temperament, great move to bring to a close debate on Executive heard through our input to the Presi- legal ability and great capacity. That Calendar No. 705, Henry W. Saad, of Michi- dent. is what all of the people who know him gan, to be United States Circuit Judge for My distinguished colleague from New best say. He also has a ‘‘very good’’ the Sixth Circuit, Vice James L. Ryan, re- York spoke about the fact that he and recommendation from the American tired. Bar Association. So he has fit the bill Bill Frist, , Lamar Alex- his colleague from New York, opposite ander, Charles Grassley, Mike Crapo, parties of the President, have worked there. Pete Domenici, Lincoln Chafee, Mitch with him and have had agreement on The real problem has been in the McConnell, Ted Stevens, George Allen, judges they believe were mainstream, prior administration, we were unable Lindsey Graham, John Warner, Jeff who were appropriate for the bench, to get two judges through, Judge He- Sessions, John Ensign, Trent Lott, Jim and they have been able to work to- lene White and Kathleen McCree Talent, Pat Roberts. gether to do that. Lewis, both of whom are nice people. I The PRESIDING OFFICER. By unan- Why in New York and not Michigan? tried to do my best to get them imous consent, the mandatory quorum Why in California and not Michigan? through, but we could not because call has been waived. Why in Washington but not Michigan? there was zero consultation at the The question is, Is it the sense of the Why in Wisconsin but not Michigan? time, and by the time we got to the Senate that debate on Executive Cal- The issue for us today on behalf of end, it got into another set of problems endar No. 705, the nomination of Henry the people of our State is we are asking and, frankly, they did not get con- W. Saad, of Michigan, to be United for the same consideration, the same firmed. States Circuit Court Judge for the The two Senators from Michigan ability to have input about people who Sixth Circuit, shall be brought to a have been very upset about that, and if will serve us long past this President, close. people who will serve us long past the I were to put myself in their shoes I The yeas and nays are mandatory next President, people who have life- would feel the same way, perhaps. under the rule. time appointments and make decisions The fact of the matter is these are that affect our lives in every facet of three excellent people who could do a The clerk will call the roll. the laws that affect us, from the work- very good job on the bench, and Judge The assistant legislative clerk called place to the home to the environment Saad certainly in this particular case the roll. to civil rights. These judges make deci- is very capable of doing the job. So are Mr. REID. I announce that the Sen- sions that affect each of us, and it is Judge Richard Griffin and Judge David ator from North Carolina (Mr. ED- our responsibility to be involved and W. McKeague. I will continue to work WARDS) and the Senator from Massa- make sure we are working with the to try and resolve the problems that chusetts (Mr. KERRY) are necessarily White House, whoever that is, to have exist with the Michigan Senators, but absent. the very best choices that are balanced these people deserve up-or-down votes The PRESIDING OFFICER (Mr. EN- and mainstream and will continue on and should have up-or-down votes. SIGN). Are there any other Senators in long beyond most of us who are serving Some have said if two Senators are the Chamber desiring to vote? in the Senate. against a nomination in their State, The yeas and nays resulted—yeas 52, This is important, and it is with that should be the end of it. That is not nays 46, as follows: true, and it never has been with regard great disappointment that I rise today [Rollcall Vote No. 160 Ex.] to ask for a ‘‘no’’ vote on cloture be- to a circuit court of appeals nominees. cause we have been attempting to work Every administration has guarded its YEAS—52 this out now for almost 3 years. Unfor- right to nominate and put forth circuit Alexander Dole Miller court of appeals nominations, and in Allard Domenici Murkowski tunately, this move to get this vote at Allen Ensign Nickles this time does not help us get to a fair most cases at least one or two of the Bennett Enzi Roberts bipartisan conclusion. It is an effort Senators have been cooperative in Bond Fitzgerald Santorum that will only get in the way of that helping. Brownback Frist Sessions Bunning Graham (SC) happening. In this particular case, both Senators Shelby Burns Grassley Smith Campbell Gregg I ask colleagues to join with us in feel aggrieved because of the prior two Snowe Chafee Hagel saying no to the motion to close debate judges and in the process have had Specter Chambliss Hatch Stevens and invoking cloture, and I ask col- some difficulty with Judge Saad. I as- Cochran Hutchison leagues to give us an opportunity, that sure the Senate that Judge Saad is an Coleman Inhofe Sununu same opportunity that anyone on this excellent person. He deserves this posi- Collins Kyl Talent Thomas floor would ask, the same opportunity tion. There is no question about Griffin Cornyn Lott Craig Lugar Voinovich that others have been given, to work and McKeague. They are two excellent Crapo McCain Warner together with this White House to de- judges and have great reputations in DeWine McConnell

VerDate jul 14 2003 03:15 Jul 23, 2004 Jkt 029060 PO 00000 Frm 00016 Fmt 4624 Sfmt 0634 E:\CR\FM\G22JY6.025 S22PT1 July 22, 2004 CONGRESSIONAL RECORD — SENATE S8593 NAYS—46 disturbing. What is going on is a hi- What was particularly troubling was Akaka Dorgan Lieberman jacking of the constitutional process of that Senator Abraham had worked Baucus Durbin Lincoln advice and consent. with the previous White House Coun- Bayh Feingold Mikulski This abuse of the process isn’t just Biden Feinstein sel, Mr. Ruff, to improve the consulta- Murray being used on these two nominees. Un- Bingaman Graham (FL) Nelson (FL) tion process. In fact, despite previous Boxer Harkin Nelson (NE) fortunately, we have now reached dou- difficulties, Senator Abraham had fully Breaux Hollings Pryor ble-digit filibusters. There are ten judi- cooperated with the administration in Byrd Inouye Reed Cantwell Jeffords cial nominees who have been subjected advancing the nominations of a num- Reid Carper Johnson to a filibuster. They are Miguel ber of Michigan nominees. Unfortu- Rockefeller Clinton Kennedy Sarbanes Estrada, D.C. Circuit; Priscilla Owen, nately, the situation again deterio- Conrad Kohl 5th Circuit; William Pryor, 11th Cir- Corzine Landrieu Schumer rated and the White House reverted to Daschle Lautenberg Stabenow cuit; Charles Pickering, 5th Circuit; its previous pattern of lack of con- Dayton Leahy Wyden Carolyn Kuhl, 9th Circuit; Janice Rog- sultation. In fact, Senator Abraham Dodd Levin ers Brown, D.C. Circuit; Williams was not consulted and in fact was told NOT VOTING—2 Myers, 9th Circuit; , 6th by the White House Counsel that de- Edwards Kerry Circuit; David McKeague, 6th Circuit; spite earlier representations, the ad- and Richard Griffin, 6th Circuit. In ad- The PRESIDING OFFICER. On this ministration felt under no real obliga- dition to these ten individuals, there vote, the yeas are 52 and the nays are tion to do anything of the kind. are five additional Circuit Court nomi- Because of the White House’s lack of 46. Three-fifths of the Senators duly nations that are threatened to be fili- consultation, the nominations of the chosen and sworn not having voted in bustered—Claude Allen, 9th Circuit; two individuals did not move forward. the affirmative, the motion is rejected. , 4th Circuit; Susan This was consistent with my well stat- Mr. REID. I move to reconsider the Neilson, 6th Circuit; Brett Kavanaugh, ed policy, communicated to Mr. Ruff, vote. D.C. Circuit; and William Haynes, 4th that if good faith consultation has not Mr. BOND. I move to lay that motion Circuit. taken place, the Judiciary Committee on the table. These individuals being filibustered will treat the return of a negative blue The motion to lay on the table was represent a cross section of America slip by a home state Senator as disposi- agreed to. and include men and women as well as tive and the nominee will not be con- f members of various minority groups. sidered. NOMINATION OF RICHARD A. GRIF- And they are decent individuals with At the end of the Clinton presidency, FIN TO BE UNITED STATES CIR- outstanding records in the law, in pub- the nominations of Ms. White and Ms. CUIT JUDGE FOR THE SIXTH lic service and in their States and com- Lewis were returned to the President CIRCUIT munities. unconfirmed. Their renomination was It appears that these nominations urged by Senators LEVIN and STABENOW CLOTURE MOTION are being tied up as some sort of pay- at the beginning of President Bush’s The PRESIDING OFFICER. Under back for the way President Clinton’s administration. During the spring and the previous order and pursuant to rule nominees were treated. However, a re- summer of 2001, there was considerable XXII, the clerk will report the motion view of the record will demonstrate consultation by the President with the to invoke cloture. that this contention is without merit. Michigan Senators regarding nomina- The assistant legislative clerk read What is happening is the creation of a tions to judicial vacancies, and the as follows: stalemate for political purposes. Sixth Circuit in particular. CLOTURE MOTION The current controversy surrounding While the White House protected its We the undersigned Senators, in accord- the nomination of Henry Saad to be constitutional prerogative to nominate ance with the provisions of Rule XXII of the United States Circuit Judge for the individuals to the judiciary, there was Standing Rules of the Senate, do hereby Sixth Circuit dates back a decade. At an offer to consider nominating both of move to bring to a close debate on Executive the end of President George H.W. the two individuals to Federal judge- Calendar No. 789, Richard A. Griffin of Michi- Bush’s administration two Michigan ships in Michigan in an effort to ad- gan, to be U.S. circuit judge for the Sixth nominees to the federal courts were de- Circuit. vance the process. These overtures Bill Frist, Orrin Hatch, Lamar Alex- nied hearings by the Democratic Sen- were not only rebuffed, but in fact ander, Charles Grassley, Mike Crapo, ate and failed to attain confirmation. holds were requested to be placed on all Pete Domenici, Lincoln Chafee, Mitch Those nominees were John Smientanka Sixth Circuit nominations. McConnell, Ted Stevens, George Allen, and Henry Saad, whose nomination we This was an unfortunate escalation Lindsey Graham, John Warner, Jeff are considering again today. of the dispute, and was particularly un- Sessions, John Ensign, Trent Lott, Jim As President Clinton named his fair to other States in the Sixth Cir- Talent, Pat Roberts. nominees to fill judicial vacancies, cuit. In addition, this left the circuit at Mr. HATCH. Mr. President, I am there was no expectation, let alone de- half-strength. Fortunately, we have pleased that we are considering the mand, that the two previous nominees been able to confirm non-Michigan nominations of Judge Richard Griffin be renominated by a new administra- judges to the circuit court. and Judge David W. McKeague, who tion. Accordingly, President Clinton I regret that the cycle of acrimony have been nominated by President did nominate Michigan nominees to and partisanship has escalated over the Bush to serve on the United States both the Sixth Circuit and the district past decade. I believe the Bush admin- Court of Appeals for the Sixth Circuit. courts. In fact, nine of those nominees istration made a good faith offer and These individuals each have a sterling were confirmed. A majority were con- regrets that the compromise was not resume and a record of distinguished firmed during Republican control of accepted. However, even as the Judici- public service. So I rise today to ex- the Senate. ary Committee gives appropriate con- press my enthusiastic support for the Two nominees, Helene White and sideration to the views of home State confirmation of Judge Richard Griffin Kathleen McCree Lewis, failed to at- senators, it is not in the public interest and Judge David W. McKeague to the tain confirmation. The primary cir- to permit this partisan obstructionism Sixth Circuit Court of Appeals. cumstance for their failed nomination to continue. It is unfortunate that we have to con- was the lack of consultation with one So let me summarize regarding the tinue coming to the floor to vote on of the home State senators. In his let- treatment of Michigan judicial nomi- cloture motions, to end debate on these ter to then White House Counsel Beth nees. During the current Bush presi- nominations, rather than the Senate Nolan, Senator Abraham wrote to ex- dency the Senate has confirmed no being able to vote up or down on the press his astonishment and dismay Michigan judges. Six nominations are merits of the nomination. This unprec- that President Clinton forwarded the pending. During the Clinton presidency edented abuse of the process, by fili- nomination for a Sixth Circuit seat the Senate confirmed nine Michigan buster, to prevent a majority of the without any advance notice or con- judges. Although two Michigan nomi- Senate from exercising its will is truly sultation. nees were left unconfirmed at the end

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