Statement Of Senator Patrick Leahy
Senate Judiciary Committee
Executive Business Meeting
The Saad Nomination
June 17, 2004

A Republican Double Standard

A vote on the nomination of Henry Saad today will set a precedent in this Committee, and will be long remembered in the annals of the Senate and of our Committee for the double standard it embodies.  In collusion with a White House of the same party, the Senate’s Republicans have engaged in a series of changed practices and broken rules on this Committee.  The White House and some in the Senate have even suggested changing the Senate’s rules to consolidate the White House’s control over the judicial nominations process.  Over the last three and one-half years, the good faith efforts of Senate Democrats to repair the damage done to the judicial confirmation process over the previous six years has been met with nothing but divisive partisanship.   

Today is the first time that our Chairman will proceed to a Committee vote on a judicial nominee with two negative blue slips returned to the Committee.  I believe this nomination evidenced the first time any Chairman and any Senate Judiciary Committee proceeded with a hearing on a judicial nominee over the objection of both home-state Senators.  It is certainly the only time in the last 50 years, and I know it to be the only time during my 29 years in the Senate.    

Now this Committee is making a further profound change in its practices.  When a Democratic President was doing the nominating and Republican Senators were objecting, a single objection from a single home-state Senator stalled any nomination.  The Chairman cannot cite a single example of a single time that he went forward with a hearing over the objection or negative blue slip of a single Republican home-state Senator during the years that President Clinton was the nominating authority.  But now that a Republican President is doing the nominating, no amount of objecting by Democratic Senators is sufficient.  The Chairman overrode the objection of one home-state Senator with the Kuhl nomination.  The Chairman outdoes himself today by overriding the objections of both home-state Senators and going forward with this nomination.

What I doubt we will hear from the other side of the aisle is the plain and simple truth of the two conflicting policies the Chairman has followed.  While it is true that various Chairmen of the Judiciary Committee have used the blue-slip in different ways -- some to work unfairness, and others to attempt to remedy it -- it is also true that each of those Chairmen was consistent in his application of his own policy -- that is, until now. 

Partisanship Patterns

The double standards that the Republican majority has adopted obviously depend upon the occupant of the White House.  This change in practice marks another example of their disregard for the rules and practices of this Committee.   The Republican majority has already abandoned our historic practice of bipartisan investigation as in the Pryor nomination, and the majority has abandoned the meaning and consistent practice of protecting minority rights through a longstanding Committee rule, Rule 4, that required a member of the minority to vote to cut off debate in order to bring a matter to a vote in several other instances.  The Committee took another giant step in the direction of unbridled partisanship through Judge Saad’s hearing.  During these years we have suffered through the scandal of the theft of staff memoranda and files from the Judiciary computer by Republican staff, a matter which is now under criminal investigation by the Department of Justice.  It is all part of a pattern that has included bending, changing and even breaking this Committee’s rules to gain partisan advantage and to stiffen the White House’s influence over the Senate.  At the White House’s urging, some have even sought to change the Senate’s own rules.  clearly Republican partisans will apparently stop at nothing in their efforts to aid and abet this White House in the efforts to politicize the federal judiciary.   

Some Senators in this Committee have said we need to forget the unfairness of the past on nominations and start on a clean slate.  But the way to wipe that slate clean is through cooperation now, and moving forward together -- not with the petulant, partisan unilateralism that we have seen so often from this Administration.

Under our Constitution, the Senate has an important role in the selection of our judiciary.  The brilliant design of our Founding Fathers established that the first two branches of government would work together to equip the third branch to serve as an independent arbiter of justice.  As columnist George Will has written, “A proper constitution distributes power among legislative, executive and judicial institutions so that the will of the majority can be measured, expressed in policy and, for the protection of minorities, somewhat limited.”  The structure of our Constitution and our own Senate rules of self-governance are designed to protect minority rights and to encourage consensus.  Despite the razor-thin margin of recent elections, the Republican majority is not acting in a measured way but in disregard for the traditions of bipartisanship that are the hallmark of the Senate.    

Republican White House, Different Rules

The Circuit Court nominee before us today, Judge Carolyn Kuhl, however, is not supported by both of her home-state Senators.  Her appearance before this Committee, despite that clearly stated opposition, is another in a string of transparently political actions taken by the Chairman since the beginning of this Congress.  In each of these actions, each unprecedented, the Chairman has either done something he has never done as Chairman before, or backed the White House in its efforts to break new ground in politicizing the federal judiciary.

When there was a Democratic President in the White House, circuit court nominees were delayed and deferred, and vacancies on the Courts of Appeals more than doubled under Republican leadership from 16 in January 1995, to 33 when the Democratic majority took over part way through 2001.

First, in January, he scheduled three controversial circuit court nominees on one hearing, scheduled to take place in the course of one very busy day in the Senate.  Of course, he will argue that it was not the first time that more than two circuit court nominees had appeared in Committee together, and that is correct. But it was absolutely the first time that this Chairman had ever scheduled such a hearing for a president’s nominees.  In the previous six years he headed this Committee, he never once brought in three circuit court nominees, let alone three very controversial ones, before this body in a single hearing.  But in this new chairmanship, it is the very first hearing that got scheduled.  Why the change in practice?  The only conceivable difference is that now there is a Republican in the White House.

Under Democratic leadership, we held hearings on 20 circuit court nominees in 17 months.  Indeed, while Republicans averaged seven confirmations to the circuit courts every 12 months for the last President, the Senate under Democratic leadership confirmed 17 in its 17 months with an historically uncooperative White House.  

Next, he supported and facilitated the re-nomination of Priscilla Owen to a seat on the U.S. Court of Appeals for Fifth Circuit for which she was already rejected by this Committee.  He brought her back for a hearing during which no new facts of any significance were introduced, but during which many leading questions were asked and accusations of unfairness made.  This is a nomination which should never have been re-sent to the Senate, and which, if it succeeds, will only be because of a display of raw politics.

With a Republican in the White House, the Republican majority shifted  from the restrained pace it had said was required for Clinton nominees, into overdrive for the most controversial of President Bush’s nominees.  In 2003 alone, 13 circuit court judges were confirmed.  This year we held more hearings have been held for nominees in just five months than were held in all of 1996 or all of 2000.  One hundred and eighty-six of President Bush’s nominees have been confirmed so far – more than in all four years of President Reagan’s first term, when he had a Republican Senate to work with.  When a Democratic President was seeking re-election in 1996, the Republican Senate majority did not allow a single circuit court nominee to be confirmed the entire 1996 session -- not one.   Now, the Chairman has scheduled this hearing for a nominee who does not have blue slips returned from both of her home-state Senators – that is, a nominee for whom only one of her home-state Senators has indicated she agrees that a hearing should be held.  Now, we will surely hear today [have already heard today], in defense of this hearing, a long recitation of the history of the blue slip.  We will hear how it was used unfairly during the unfortunate past of the Committee, to keep the federal bench from being integrated.  We will hear how other Chairmen, Senators Kennedy and Biden modified their policies to allow for more fairness in the consideration of a diversity of nominees for the federal bench.  And, we will hear how the Chairman’s real objection during the Clinton Administration was the so-called “lack of consultation” with Republican Senators, and how fairly and successfully President Bush’s White House has consulted with obstreperous Democrats.  The Chairman will tell us that he considers himself the heir to Democratic traditions, that he has always followed those policies and is only now acting consistent with his own past practice.

Without going through a lengthy discussion of blue slips and practices and policies let me illustrate the Republican double standards by noting the distinctive blue slips used by the Chairman with a Democratic President, and then with a Republican President.  These pieces of blue paper are what the Chairman uses to solicit the opinions of home-state Senators about the President’s nominees.  Simply stated, the blue slip practice is the enforcement mechanism for the consultation that the Constitution intends and requires.  When President Clinton was in office, the Chairman’s blue slip sent to Senators, asking their consent, said this:

“Please return this form as soon as possible to the nominations office.  No further proceedings on this nominee will be scheduled until both blue slips have been returned by the nominee’s home state senators.”

When President Bush began his term, and Senator Hatch took over the chairmanship of this Committee, he changed his blue slip to drop the assurance he had always provided Republican Senators who had an objection.  He eliminated the statement of his consistent practice in the past by striking the sentence that provided:  “No further proceedings on this nominee will be scheduled until both blue slips have been returned by the nominee’s home state senators.”  Of course what that had meant in practice in the years 1995-2000 was that no hearings would take place on a judicial nominee unless and until both home-state Senators returned blue slips indicating that they did not object to proceeding with a hearing on the nominee.

Confirmation Amnesia

I know Republican partisans hate being reminded of the double standards by which they operated when asked to consider so many of President Clinton’s nominees.  I know that they would rather exist in a state of “confirmation amnesia,” but that is not fair and that is not right.  The Because the blue slip policy in effect, and enforced strictly, by the Chairman during the Clinton Administration operated as an absolute bar to the consideration of any nominee to any court unless both home-state Senators had returned positive blue slips.  No time limit was set and no reason had to be articulated. 

Remember also that before I became Chairman in June of 2001, all of these decisions were being made in secret.  Blue slips were not public, and they were allowed to operate as anonymous holds on otherwise qualified nominees. 

A similar tale exists in connection with the Fifth Circuit where Enrique Moreno, Jorge Rangel and Alston Johnson were nominated but never given confirmation hearings. 

Record of Consensus Confirmations

Many of the 186 nominees who have been confirmed for this President have proceeded by consensus out of Committee and on the Senate Floor.  I would have hoped that the scores of nominees agreed upon by home-state Senators of both parties, voted out of Committee unanimously and confirmed without opposition in the full Senate would have been enough of a lesson for the President.  I would have hoped that the Michigan Senators’ principled and reasoned opposition to the way the Sixth Circuit nominations have occurred would have been a starting point from which to reach a compromise.  But, as with so many other nominees and so many other issues, compromise was not forthcoming from this White House.  Instead, they have refused to acknowledge the wrong done to President Clinton’s nominees to the very same Court, and they have refused to budge.  It is a shame.

When the Committee reports this nomination, we will have reported more than 200 of President Bush’s judicial nominees.  As I said, most have been reported with unanimous support by Democrats and Republicans.  Some have been contentious and some have been so extreme that they have not garnered bipartisan support and have been problematic.  We have demonstrated time and again that when we unite and work together we make progress.  Republicans have too often chosen, instead, to seek to pack the courts and tilt them out of balance and to use unfounded allegations of prejudice to drive wedges among Americans for partisan political purposes. 

We have more federal judges currently serving than at any time in our nation’s history and we have succeeded in reducing judicial vacancies to the lowest level in 14 years.  Even Alberto Gonzales, the White House Counsel, conceded recently that:  “If you look at the total numbers, I think one could draw the conclusion that we've been fairly successful in having a lot of the president's nominees confirmed.”  The Republican leader in the Senate has termed our efforts “steady progress.”  The White House would be even more successful if they would work with us to resolve this situation in the Sixth Circuit. 

An Invitation For Confrontation

That Chairman Hatch has carried this matter over for so many months, so many times is indicative of how divisive it will be.  When I was chair he insisted that any matter or nominee carried over for a week was entitled to and must necessarily receive a vote the next week.  That was never our rule of course and his practice here belies it.  What was troubling in this case was that he proceeded over the objection of both home-state Senators. 

His decision to proceed to a vote today is even more deeply troubling.  It portends more conflict in the days and weeks ahead.  Far from achieving a truce and more progress in filling judicial vacancies it appears that Republican partisans are demanding more confrontation.  That is regrettable. 

Senate Democrats had demonstrated our good faith in confirming 100 of President Bush’s judicial nominees in our 17 months in the majority.  We have now cooperated in the confirmation of more judicial nominees for President Bush than President Reagan achieved working hand in hand with a Republican Senate majority.  We have already confirmed more judges this Congress than were confirmed before the presidential elections in 1996 or 2000.  We are proceeding in accord with the agreement reached with the White House last month to consider and possibly confirm as many as 198 judicial nominees.  We have demonstrated not only our willingness to cooperate but we have done so to achieve historic confirmation numbers and historically low numbers of judicial vacancies.  I have come to recognize that no good deed we do in correcting the Republican abuses of the past goes unpunished. 

Another Troubling Nominee

I also have concerns about the nominee, his legal judgment, and his ability to be fair.  

While Judge Saad was an attorney his practice primarily consisted of defending large corporations against employees’ claims of race discrimination, age discrimination, sexual harassment and wrongful termination.  A review of Judge Saad’s cases on the Michigan Court of Appeals raises concerns because he frequently favored employers in complaints brought by workers, even in the face of extremely sympathetic facts.  

For example, in Cocke v. Trecorp Enterprises, a young Burger King employee was aggressively and repeatedly sexually harassed and assaulted by her shift manager.  More than once, she reported this treatment to her other shift managers who promised to take care of it.  The trial court prevented her case from going to the jury but Judge Saad dissented from an appellate decision reversing the trial court.  Judge Saad ignored the legal standard of review followed by the majority and would have protected the corporation from responsibility for the shift manager’s notorious and unlawful behavior.

In another case, Fuller v. McPherson Hospital, a jury who heard live testimony was persuaded to conclude that a woman had endured sexual harassment from her immediate supervisor and other superiors.  The trial court vacated the jury findings because it found that the plaintiff had not complained of the harassment while working at the hospital.  On appeal, the panel reinstated the jury’s finding of sexual harassment but Judge Saad dissented.  Unfortunately, his dissent in this case was only two sentences and failed to address his colleagues’ legal conclusions.

An Intemperate Response

I cannot speak in open session about all concerns but I can note a temperament problem, as evidenced by an email he sent, a copy of which he mistakenly sent to Senator Stabenow as well.  In Judge Saad’s email he displays not only shockingly bad manners, but appalling judgment and a possible threatening nature. 

In the email exchange, Judge Saad is writing to someone named Joe, forwarding him a copy of another email sent by Senator Stabenow in response to a letter of support for Saad’s nomination.  In her response Senator Stabenow politely and reasonably explains the basis for her continuing objection to the nomination, explaining that she understands the writer’s “concerns and frustrations,” thanking them, and offering her help in the future.  Apparently this type of honest disagreement with a constituent and courteous explanation was too much for Judge Saad.  Here is what he wrote in response to the Senator’s explanation:

She sends this standard response to all those who inquire about this subject.  We know, of course, that this is the game they play.  Pretend to do the right thing while abusing the system and undermining the constitutional process.  Perhaps some day she will pay the price for her misconduct.

I know that Senator Stabenow does not need me to defend her, and I doubt that sort of personal threat concerns her, but I think Judge Saad’s message deserves examination by this Committee.  It shows a shocking lack of good judgment, a pronounced political viewpoint, and a total absence of respect for the process undertaken by Senators of good faith and good will. 

As soon as they saw this email message, both Michigan Senators wrote to the President’s Counsel, Alberto Gonzales, alerting him to the offensive comments.  While I do not believe Judge Gonzales or the President ever responded, two weeks later Judge Saad did get around to sending a “non-apology.”  He wrote:

I write regarding your and Senator Levin’s recent letter to Alberto R. Gonzales, Counsel to the President (a copy of which you sent to me), relating to an e-mail message that I meant to send only to a close personal friend of mine.  Unfortunately, this e-mail, which commented on my pending nomination, was inadvertently sent to your office.  I regret that the e-mail was sent to you and certainly apologize for any personal concern this may have caused you.  I have a great deal of respect for our political institutions and meant no lack of respect to you.

He cannot bring himself to say he is sorry for his words, to apologize for accusing a Senator of abusing the system she so respects, or even for expressing the hope that she would “pay for her conduct.”  Instead he is sorry that he was caught, and if what he said may have caused Senator Stabenow “personal concern.” 

Apart from all of the procedural problems with this nomination, I have serious concerns about giving lifetime tenure to someone with this stunning lack of judgment.  The people of the Sixth Circuit deserve better than this.  And the American people, the independent federal judiciary, the U.S. Senate, and this venerable Committee, all deserve better than the double standard that is now squarely on display for all to see.

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