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The U.S. Senate now has confirmed 98 of President Bush’s judicial
nominees. The Senate confirmed 18 more judicial nominees late
Thursday night (Nov. 14), including the 15th appellate
court nominee, John Rogers, to the Sixth Circuit. The Judiciary
Committee on Thursday reported to the full Senate the 100th
Bush judicial nominee it has approved during the 16 months of
Democratic control of the Senate. The committee has voted on 102
overall (the two who were not approved are Priscilla Owen and Charles
Pickering). The Senate on Monday is expected to begin consideration
of at least one of the two additional appellate court nominees
approved by the committee on Thursday (Dennis Shedd and Michael
McConnell).
Statement of Chairman Patrick
Leahy,
On the Confirmation Vote on John Rogers
Nominated to the U.S.
Court of Appeals for the Sixth Circuit
November 15, 2002
Last
night, the Senate voted to confirm the nomination of John Rogers who
is nominated to the U.S. Court of Appeals for the Sixth Circuit. By
confirming this nomination, we are trying to move forward in providing
help to the Sixth Circuit. Earlier this year, we held a hearing for
Judge Julia Gibbons to a seat on the Sixth Circuit, who was confirmed
by the Senate on July 29, 2002 by a vote of 95 to 0. With last
night’s vote, the Democratic-led Senate confirmed the 15th
judge to our federal Courts of Appeal and our 98th judicial nominee
since the change in Senate majority in July 2001. I have placed a
separate statement in the record on the occasion of confirming that
many of this President’s judicial nominees in just 16 months.
Republicans often say that almost half of the seats on the Sixth
Circuit are vacant but what they fail to acknowledge is that most of
those vacancies arose during the Clinton Administration and before the
change in majority last summer. None, zero, not one of the
Clinton nominees to those current vacancies on the Sixth Circuit
received a hearing by the Judiciary Committee under Republican
leadership. With the confirmation of Professor Rogers, we have
reduced the number of vacancies on that court to six, but four of
those remaining lack home-State consent due to the President’s failure
to address the legitimate concerns of Senators in that circuit whose
nominees were blocked by Republicans during the period of Republican
control of the Senate.
The
Sixth Circuit vacancies are a prime and unfortunate legacy of the past
partisan obstructionist practices under Republican leadership.
Vacancies on the Sixth Circuit were perpetuated during the last
several years of the Clinton Administration when the Republican
majority refused to hold hearings on the nominations of Judge Helene
White, Kathleen McCree Lewis and Professor Kent Markus to vacancies in
the Sixth Circuit.
One of
those seats has been vacant since 1995, the first term of President
Clinton. Judge Helene White of the Michigan Court of Appeals was
nominated in January 1997 and did not receive a hearing on her
nomination during the more than 1,500 days before her nomination was
withdrawn by President Bush in March of last year. Judge White’s
nomination may have set an unfortunate record.
Her
nomination was pending without a hearing for more over four years –
51 months. She was first nominated in January 1997 and renominated
through March of last year when President Bush chose to withdraw her
nomination. Under Republican control, the Committee averaged hearings
on only about eight Courts of Appeals nominees a year and, in 2000,
held only five hearings on Courts of Appeals nominees all year.
In
contrast, Professor Rogers was the fifteenth Court of Appeals nominee
of President Bush to receive a hearing by the Committee in less than a
year since the reorganization of the Senate Judiciary Committee. In
16 months we held hearings on 20 circuit court nominations. Professor
Rogers was being treated much better than Kathleen McCree Lewis, a
distinguished African American lawyer from a prestigious Michigan law
firm. She never had a hearing on her 1999 nomination to the Sixth
Circuit during the years it was pending before it was withdrawn by
President Bush in March 2001.
Professor Kent Markus, another outstanding nominee to a vacancy on the
Sixth Circuit that arose in 1999, never received a hearing on his
nomination before his nomination was returned to President Clinton
without action in December 2000. While Professor Markus’ nomination
was pending, his confirmation was supported by individuals of every
political stripe, including 14 past presidents of the Ohio State Bar
Association and more than 80 Ohio law school deans and professors.
Others
who supported Professor Markus include prominent Ohio Republicans,
including Ohio Supreme Court Chief Justice Thomas Moyer, Ohio Supreme
Court Justice Evelyn Stratton, Congresswoman Deborah Pryce, and
Congressman David Hobson, the National District Attorneys Association,
and virtually every major newspaper in the state.
In his
testimony to the Senate in May, Professor Markus summarized his
experience as a federal judicial nominee, demonstrating how the
“history regarding the current vacancy backlog is being obscured by
some.” Here are some of things he said:
“On February 9, 2000, I was the President's first judicial nominee in
that calendar year. And then the waiting began. . . .
At the time my nomination was pending, despite lower vacancy rates
than the 6th Circuit, in calendar year 2000, the Senate confirmed
circuit nominees to the 3rd, 9th and Federal Circuits. . . . No 6th
circuit nominee had been afforded a hearing in the prior two years.
Of the nominees awaiting a Judiciary Committee hearing, there was no
circuit with more nominees than the 6th Circuit.
With high vacancies already impacting the 6th Circuit's performance,
and more vacancies on the way, why, then, did my nomination expire
without even a hearing? To their credit, Senator DeWine and his staff
and Senator Hatch's staff and others close to him were straight with
me.
Over and over again they told me two things: 1) There will be no more
confirmations to the 6th Circuit during the Clinton Administration[.]
2) This has nothing to do with you; don't take it personally – it
doesn't matter who the nominee is, what credentials they may have or
what support they may have – see item number 1. . . .
The fact was, a decision had been made to hold the vacancies and see
who won the presidential election. With a Bush win, all those seats
could go to Bush rather than Clinton nominees.”
As
Professor Markus identified, some on the other side of the aisle held
these seats open for years for another President to fill, instead of
proceeding fairly on the consensus nominees pending before the
Senate. Some were unwilling to move forward, knowing that retirements
and attrition would create four additional seats that would arise
naturally for the next President. That is why there are now so many
vacancies on the Sixth Circuit.
Had
Republicans not blocked President Clinton’s nominees to this court, if
the three Democratic nominees had been confirmed and President Bush
appointed the judges to the other vacancies on the Sixth Circuit,
that court would be almost evenly balanced between judges appointed by
Republicans and Democrats. That is what Republican obstruction was
designed to avoid, balance. The same is true of a number of other
circuits, with Republicans benefiting from their obstructionist
practices of the preceding six and a half years. This combined with
President Bush’s refusal to consult with Democratic Senators about
these matters is particularly troubling.
Long
before some of the recent voices of concern were raised about the
vacancies on that court, Democratic Senators in 1997, 1998, 1999, and
2000 implored the Republican majority to give the Sixth Circuit
nominees hearings. Those requests, made not just for the sake of the
nominees but for the sake of the public’s business before the court,
were ignored. Numerous articles and editorials urged the Republican
leadership to act on those nominations.
Fourteen
former presidents of the Michigan State Bar pleaded for hearings on
those nominations. The former Chief Judge of the Sixth Circuit, Judge
Gilbert Merritt, wrote to the Judiciary Committee Chairman years ago
to ask that the nominees get hearings and that the vacancies be
filled. The Chief Judge noted that, with four vacancies – the four
vacancies that arose in the Clinton Administration – the Sixth Circuit
“is hurting badly and will not be able to keep up with its work load
due to the fact that the Senate Judiciary Committee has acted on none
of the nominations to our Court.” He predicted: “By the time the next
President in inaugurated, there will be six vacancies on the Court of
Appeals. Almost half of the Court will be vacant and will remain so
for most of 2001 due to the exigencies of the nomination process.
Although the President has nominated candidates, the Senate has
refused to take a vote on any of them.”
However,
no Sixth Circuit hearings were held in the last three full years of
the Clinton Administration (almost his entire second presidential
term), despite these pleas. Not one. Since the shift in majority
last summer, the situation has been exacerbated further as two
additional vacancies have arisen.
The
Committee’s April 25th hearing on the nomination of Judge
Gibbons to the Sixth Circuit was the first hearing on a Sixth Circuit
nomination in almost five years, even though three outstanding,
fair-minded individuals were nominated to the Sixth Circuit by
President Clinton and pending before the Committee for anywhere from
one year to over four years. Judge Gibbons was confirmed by the
Senate on July 29, 2002, by a vote of 95 to 0. We did not stop there,
but proceeded to hold a hearing on a second Sixth Circuit nominee,
Professor Rogers, just a few short months later in June.
Just as
we held the first hearing on a Sixth Circuit nominee in many years,
the hearing we held on the nomination of Judge Edith Clement to the
Fifth Circuit last year was the first on a Fifth Circuit nominee in
seven years and she was the first new appellate judge confirmed to
that Court in six years.
When we
held a hearing on the nomination of Judge Harris Hartz to the Tenth
Circuit last year, it was the first hearing on a Tenth Circuit nominee
in six years and he was the first new appellate judge confirmed to
that Court in six years. When we held the hearing on the nomination
of Judge Roger Gregory to the Fourth Circuit last year, it was the
first hearing on a Fourth Circuit nominee in three years and he was
the first appellate judge confirmed to that court in three years.
A number
of vacancies continue to exist on many Courts of Appeals, in large
measure because the recent Republican majority was not willing to hold
hearings or vote on half – 56 percent – of President Clinton’s Courts
of Appeals nominees in 1999 and 2000 and was not willing to confirm a
single judge to the Courts of Appeals during the entire 1996 session.
From the
time the Republicans took over the Senate in 1995 until the
reorganization of the Committee last July, circuit vacancies increased
from 16 to 33, more than doubling. Democrats have broken with that
recent history of inaction. In the last 16 months, we have held 26
judicial nominations hearing, including 20 hearings for circuit court
nominees.
Professor Roger’s nomination was also the fourth judicial nomination
from Kentucky to be considered by the Committee in its first year, and
the eighth nomination from Kentucky overall. There are no judicial
vacancies left in the State.
Professor Rogers of the University of Kentucky College of Law has
experience as an appellate litigator and a teacher, and is a prolific
author on a number of difficult legal topics. It is important to note
that aspects of his record raise concerns. As a professor, he has
been a strong proponent of judicial activism. No Clinton judicial
nominee with such published views would ever have been confirmed
during the period of Republican control. In his writings, Professor
Rogers has called on lower court judges to reverse higher court
precedents, if the lower court judge thinks the higher court will
ultimate reverse its own precedent. Such an activist approach is
inappropriate in the lower federal courts. The Supreme Court itself
has noted that lower courts should follow Supreme Court precedent and
not anticipate future decisions in which the Supreme Court may
exercise its prerogative to overrule itself.
Prognostications about how the Supreme Court will rule often turns out
to be wrong. For example, some predicted that the Supreme Court
would overturned Miranda, but the Supreme Court, in an opinion
by Chief Justice Rehnquist, declined to do so. Similarly, people like
Professor Rogers have called on the Supreme Court to overturn Roe
v. Wade, but thus far the Supreme Court has rejected calls to
reverse itself in this important decision regarding the rights of
women and has resisted calls to return this country to the awful
period of dangerous back alley abortions.
Professor Rogers also suggested in his academic writings that lower
court judges should consider the political views of Justices in making
the determination of when lower courts should overrule Supreme Court
precedent. In his answers to the Committee, Professor Rogers
acknowledged that he had taken that position but he now says that
lower courts should not look to the views of Justices expressed in
speeches or settings other than their opinions. Also, in his answers
to the Committee, Professor Rogers said he would give great weight to
Supreme Court dicta (or arguments that are not part of the holding of
the case). I would like to take this opportunity to urge him to take
seriously the obligation of a judge to follow precedent and the
holdings of the Supreme Court, rather than to look to dicta for views
that may support his own personal views. I would also urge him resist
acting on his academic notion that a judge should diverge from
precedent when he anticipates that the Supreme Court may eventually do
so.
Professor Rogers has assured us that he would follow precedent and not
overrule higher courts, despite his clear advocacy of that position in
his writings as a scholar. He has sworn under oath that he would not
follow the approach that he long advocated. As with President Bush’s
Eighth Circuit nominee Lavenski Smith, who was confirmed earlier this
summer, I am hopeful that Professor Rogers will be a person of his
word: that he will follow the law and not seek out opportunities to
overturn precedent or decide cases in accord with his private beliefs
rather than his obligations as a judge.
I would
also note that during his tenure at the Justice Department, Professor
Rogers appeared to support an expansive view of the power of the
Executive Branch vis-a-vis Congress. I am hopeful, however, that
Professor Rogers will recognize the important difference between being
a zealous advocate for such positions and being a fair and impartial
judge sworn to follow precedents and the law.
When he
was asked to describe any work he had handled which was not popular
but was nevertheless important, he said that the case which came to
mind was one in which he defended the CIA against a lawsuit seeking
damages for the CIA’s illegal opening of the private mail of tens of
thousands of U.S. citizens during this 1970s or 1980s. Those were
dark days of overreaching by the intelligence community against the
rights of ordinary law-abiding American citizens. Although times have
changed forever since the tragic events of September 11, I think it is
important that the American people have access to judges who will
uphold the Constitution against government excesses while also giving
acts of Congress the presumption of constitutionality to which our
laws are entitled by precedent.
Professor Rogers has repeatedly assured the Committee, however, that
he would follow precedent and not seek to overturn decisions affecting
the privacy of women or any other decision of the Supreme Court.
Senator McConnell has also personally assured me that Professor Rogers
will not be an activist but is sincerely committed to following
precedent if he is confirmed. I sincerely hope that his decisions on
the Sixth Circuit do not prove us wrong.
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