U.S. SENATOR PATRICK LEAHY

Statement Of Senator Patrick Leahy
On The Nominations Of Henry W. Saad, Richard Griffin And David McKeague To The
United States Court Of Appeal For The Sixth Circuit
July 22, 2004 

A Republican Double Standard

The handling of the nominations of Henry Saad, Richard Griffin and David McKeague in the Judiciary Committee and here on the Senate floor sets an unfortunate precedent, and will be long remembered in the annals of this chamber 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.  The home-state Senators of these nominees opposed proceeding on them any further until and unless they are able to reach a bipartisan solution with the White House, but their interests have been disregarded.  In the process Republicans have trampled on years of tradition, practice and comity.  This sort of behavior may not easily be repaired, but must be exposed.

Before I discuss the specifics of the Michigan nominations, I would like to review the recent history of Republican rule breaking, bending and changing with regard to nominations for lifetime judicial appointments.  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 sorely tested and met with nothing but divisive partisanship.  Rule after rule has been broken or twisted until the process so long agreed upon is hardly recognizable anymore. 

The string of transparently partisan actions taken by the Senate’s Republican majority took a wrong turn in January of last year.  It was then that one hearing was held for three controversial circuit court nominees, scheduled to take place in the course of a very busy day in the Senate.  There was no precedent for this in the years that Republicans served in the majority and a Democrat was in the White House. 

Then, two of the nominees from that hearing were voted out of the Committee in clear violation of Committee rules.  Despite his prior statements acknowledging the proper operation of Rule IV in February, which should operate to preserve the minority’s right to debate, the Chairman declared that Rule IV no longer applied.  I spent months working to reach an agreement to move forward the nominees voted out in violation of Rule IV and reach an understanding that this important rule would not be violated again.  However, in connection with the nomination of William Pryor to the Eleventh Circuit the Chairman again overrode the rights of the minority in order to rush to judgment on a controversial circuit court nominee.  The assurances given to us that minority rights would be respected and the Senate would not take up nominations sent to the Senate floor in violation of our rights were broken.

The Republican majority also supported and facilitated the unprecedented re-nomination and consideration of Priscilla Owen to a seat on the U.S. Court of Appeals for the Fifth Circuit, for which she already had been rejected by the Judiciary Committee.  That, too, was unprecedented.

The other rule breaking I want to discuss is the one directly relevant to the Michigan nominees.  It is the tradition of the “blue-slip,” the mechanism by which home-state Senators were, until the last two years, able to express their approval of or opposition to judicial nominees from their home States.

For many years, at least since the time of Judiciary Committee Chairman James Eastland, the Committee has sought the consent of a judicial nominee’s home-state Senators by sending them a letter and a sheet of blue paper asking whether or not they approve of the nominee.  This piece of paper, called a blue slip, formalized a courtesy long extended to home-state Senators.  It was honored without exception when Chairman Hatch chaired the Judiciary Committee during the Clinton administration.  Not once during those six years when the Committee was considering the nominations of a Democratic President, did the Chairman proceed on a nominee unless two approving, or positive blue slips had been returned.  One non-returned blue slip, let alone one where a Senator indicated disapproval of the nominee, was enough to doom a nomination and prevent any consideration. For that matter, it seemed that so long as one Republican Senator had an objection, it was honored, even if they were not home-state Senators like Senator Helms of North Carolina objecting to an African-American nominee from Virginia, or Senator Gorton of Washington objecting to nominees from California.

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.”  Now he just asks that the blue slip be returned as soon as possible, disregarding years of tradition and respect for the interests of the home-state Senators.  Can there be any other explanation for this other than the change in the White House?  It is hard to imagine.

This change in policy has worked a severe unfairness on the interests of Senators Levin and Stabenow.  They objected to the nominations of Henry Saad, Richard Griffin and David McKeague for reasons they have explained in detail.   From the very beginning, they have been crystal clear with the President and the White House about their objections, and they have done everything possible to reach a compromise.  Their concerns ought to be respected, not rejected in favor of partisan political rule-bending. 

This is not the first time the blue slip rule has been broken.  Last year the Judiciary Committee, under Republican leadership, took the unprecedented action of proceeding to a hearing on President Bush’s controversial nomination of Carolyn Kuhl to the Ninth Circuit, over the objection of Senator Boxer.  When the senior Senator from California announced her opposition to the nomination at the beginning of a Judiciary business meeting, I suggested that further proceedings on that nomination ought to be carefully considered and noted that the Committee had never proceeded on a nomination opposed by both home-state Senators once their opposition was known.  Nonetheless, in one in a continuing series of changes of practice and position, the Committee was required to proceed with the Kuhl nomination, and a divisive vote was the result.  The Senate has withheld consent to that nomination after extended debate. 

Continuing with the Saad nomination, and going further with Griffin and McKeague, the Committee made more profound changes 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.  There is not a single example of a single time that Chairman Hatch 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.  Republicans overrode the objection of one home-state Senator with the Kuhl nomination.  Republicans outdid themselves when they overrode the objections of both home-state Senators and forced the Saad, McKeague and Griffin nominations out of Committee.

We will hear a lot of arguments from the other side about the history of the blue slip, and of the practices followed by other Chairmen, including Senator Kennedy and Senator Biden.  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 Republicans have 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.  

In addition, I think the Senate and the American people need to recall the party-line vote by which Senate Republicans defeated the confirmation to the District Court in Missouri of an outstanding African-American judge named Ronnie White.  In connection with that vote, a number of Republican Senators who voted against Judge White justified their action as being required to uphold the role of the Missouri home-state Senators who opposed the nomination.  Any Senator who voted against the nomination of Ronnie White and does not vote with Senators Levin and Stabenow today will need to find another explanation for having opposed Judge White or explain why suddenly the rules that applied to Judge White do not apply today.    

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 Republicans 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 few examples of the operation of the blue slip process and how it was scrupulously honored by the Committee during the Clinton Presidency are worth remembering.  Remember, in the 106^th Congress alone, more than half of President Clinton=s circuit court nominees were defeated through the operation of the blue slip or other such partisan obstruction.   

Perhaps the most vivid is the story of the United States Court of Appeals for the Fourth Circuit, where Senator Helms was permitted to resist President Clinton’s nominees for six years.  Judge James Beaty was first nominated to the Fourth Circuit from North Carolina by President Clinton in 1995, but no action was taken on his nomination in 1995, 1996, 1997, or 1998.  Another Fourth Circuit nominee from North Carolina, Rich Leonard, was nominated in 1995, but no action was taken on his nomination either, in 1995 or 1996.  The nomination of Judge James Wynn, again a North Carolina nominee to the Fourth Circuit, sent to the Senate by President Clinton in 1999, languished without action in 1999, 2000, and early 2001 until President Bush withdrew his nomination.  

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. 

Perhaps the best documented abuses are those that stopped the nominations of Judge Helene White, Kathleen McCree Lewis and Professor Kent Markus to the Sixth Circuit.  Judge White and Ms. Lewis were themselves Michigan nominees.  Republicans in the Senate prevented consideration of any of President Clinton’s nominees to the Sixth Circuit for years. 

When I became Chairman in 2001, I ended that impasse.  The vacancies that once plagued the Sixth Circuit have been cut in half.  Where Republican obstruction led to eight vacancies on that 16-judge court, Democratic cooperation allowed four of those vacancies to be filled.  The Sixth Circuit currently has more judges and fewer vacancies than it has had in years.

Those of us who were involved in this process in the years 1995-2000 know that the Clinton White House bent over backwards to work with Republican Senators and seek their advice on appointments to both circuit and district court vacancies.  There were many times when the White House made nominations at the direct suggestion of Republican Senators, and there are judges sitting today on the Ninth Circuit and the Fourth Circuit, in the district courts in Arizona, Utah, Mississippi, and many other places only because the recommendations and demands of Republicans Senators were honored. 

In contrast, since the beginning of its time in the White House, this Bush Administration has sought to overturn traditions of bipartisan nominating commissions and to run roughshod over the advice of Democratic Senators.  They attempted to change the exemplary systems in Wisconsin, Washington, and Florida that had worked so well for so many years.  They ignored the protests of Senators like Senator Boxer who not only objected to the nominee proposed by the White House, but who, in an attempt to reach a true compromise, also suggested Republican alternatives.  And today, despite the best efforts of the well-respected Senators from Michigan, who have proposed a bipartisan commission similar to their sister state of Wisconsin, we see the Administration has flatly rejected any sort of compromise.

Partisanship Patterns

The double standards that the Republican majority has adopted obviously depend upon the occupant of the White House.  The change in the blue slip practice marks only one example of their disregard for the rules and practices of Committees and the Senate. In the Judiciary Committee, the Republican majority abandoned our historic practice of bipartisan investigation in the Pryor nomination, as well as 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.  Republicans took another giant step in the direction of unbridled partisanship through the hearings granted Judges Kuhl, Saad, Griffin and McKeague. 

During the past year and a half we have also 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. 

The partisan Republican motto seems to be “by any means necessary.”  If stealing computer files is helpful, do it.  If rules protecting the minority are inconvenient, ignore them.  If traditional practices are an impediment, break them.  Partisan Republicans seem intent on turning the independent Senate into a wholly-owned subsidiary of the Presidency and our independent federal judiciary into an activist arm of the Republican Party. 

Senate Republicans are now intent on violating “the Thurmond Rule” and the spirit of the cooperative agreement reached earlier this year by which 25 additional judicial nominees have been considered and confirmed.  The Thurmond Rule dates back at least to July 1980 when the Reagan campaign urged Senate Republicans to block President Carter’s judicial nominees.  Over time, Senator Thurmond and Republican leaders refined their use of and practices under the rule to prevent the consideration of lifetime judicial appointments in the last year of a presidency unless consensus nominees.  Consent of the majority and minority leaders as well as the chairman and ranking member of the Judiciary Committee came to be the norm.  The agreement earlier this year on the 25 additional judicial nominees considered and confirmed was consistent with our traditions and the Thurmond Rule.

Senate Republicans abused their power in the last year of President Clinton’s first term, in 1996.  They would not allow a single circuit court nominee to be considered by the Senate that entire session and only allowed 17 noncontroversial district court nominees confirmed in July.  No judicial nominees were allowed a vote in the first six months of that session or the last five months of that presidency.

In 2000, we had to work hard to get Senate Republicans to allow votes on judicial nominees, even in the wake of searing criticism of their obstructionism by the Chief Justice of the United States Supreme Court.  After July 4, 2000, the only judicial nominees confirmed were by consensus. 

In stark contrast to their practices in 1996 and 2000, the Republican leadership of the Senate is now seeking to force the Senate into confirmations of judicial nominees they know to be highly controversial.  That is wholly inconsistent with the Thurmond Rule and with their own past practices.  Republican partisans seem intent on another contrived partisan political stunt.  They insist on staging cloture votes on judicial nominees late in a presidential election year knowing that they have broken rule after rule and practice after traditional practice just to force the controversial nominations before the Senate.  They are manufacturing confrontation and controversy.  Like the President, they seek division over cooperation with respect to the handful of most controversial judicial nominees for lifetime appointments.  

Reports this week are that the Republican leadership is setting up unilaterally to change the Senate’s historic rules to protect the minority.   According to press accounts, some Republicans leaders are planning to have Vice President Cheney, acting as President of the Senate, declare that the Senate’s longstanding cloture rule is unconstitutional and then have his fellow party members sustain that partisan power grab.  When this radical might-makes-right approach was advocated last year, some Republican had reservations about sacrificing the Senate’s rights to freedom of debate.  Traditional conservatives who understand the role of the Senate as part of the checks and balances in our Constitution recognized the enormity of damage that would be caused to this institution by empowering such a partisan dictatorship.  From this week’s reports, sensible Senate Republicans are being cast aside and overridden by the most strident.

Norm Ornstein observed: “If Republicans unilaterally void a rule that they themselves have employed in the past, they will break the back of comity in the Senate.” Republicans call this the so-called “nuclear action,” because it would destroy the Senate as we know it.  It is unjustified and unwise.  It is ironic that Republicans blocked nearly 10 times as many of President Clinton’s judicial nominees as those of President Bush denied consent.  Apparently, 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.    

Both of the Senators from Michigan are respected Members of the Senate.  Both are fair-minded.  Both are committed to solving the problems caused by Republican high-handedness in blocking earlier nominees to the Sixth Circuit.  Both of these home-state Senators have attempted to work with the White House to offer their advice, but their input was rejected.  They have suggested ways to end the impasse on judicial nominations for Michigan, including a bipartisan commission along the lines of a similar commission in Wisconsin.  This is a good idea and a fair idea.  I am familiar with the work of bipartisan screening commissions.  Vermont and its Republican, Democratic and Independent Senators had used such a commission for more than 25 years with great success.  I commend the Senators representing Michigan for their constructive suggestion and for their good faith efforts to work with this White House in spite of the Administration’s refusal to work with them.  

Some Senators 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.

Although President Bush promised on the campaign trail to be a uniter and not a divider, his practice once in office with respect to judicial nominees has been more divisive than those of any president.  Citing the remarks of a White House official, The Lansing State Journal reported, for example, that the President is simply not interested in compromise on the existing vacancies in the State of Michigan.  It is unfortunate that the White House is not willing to work toward consensus with all Senators. 

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

Today we meet to consider the nomination of  California Judge Carolyn Kuhl to the United States Court of Appeals for the Ninth Circuit, Florida Judge Cecilia Altonaga to the United States District Court for the Southern District of Florida, and Louisiana Judge Patricia Minaldi to the United States District Court for the Eastern District of Louisiana.  The District Court nominees have the support of their home-state Senators, although, as I will discuss in a moment, Senators Graham and Nelson have had a most difficult time getting the White House to agree to continue the fine tradition of the Florida bi-partisan nominating commission, and have only recently come to a meeting of the minds.

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 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 ninety-eight 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, more than in the presidency of the first President Bush and more than in the last term of President Clinton.    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.

Record of Consensus Confirmations

Many of the 198 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 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.

The Judiciary Committee has now reported more than 200 of President Bush’s judicial nominees.  Most have been reported with the support of Democratic Senators.  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 decades.  Even Alberto Gonzales, the White House Counsel, conceded 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. 

Senate Democrats had demonstrated our good faith in confirming 100 of President Bush’s judicial nominees in our 17 months in the Senate 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.  We fulfilled our commitment in accord with the agreement reached with the White House to consider 25 additional judicial nominees already this year.   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

Unfortunately, this President has also chosen to nominate for some important circuit court seats some candidates who on their merits are not deserving of lifetime appointments.  It appears that Judge Saad is one of those nominees.  Clearly the Senators from Michigan have grave concerns.

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.

Also, in Coleman v. Michigan, a female corrections officer brought a sexual harassment suit against her employer, the State of Michigan.  This officer was assaulted and nearly raped by an armed prisoner.  According to the officer’s complaint, after this terrible attack, her supervisor insinuated that she provoked the attack because of her attire.  The supervisor made the officer come to his office on a regular basis to check the appropriateness of her clothing and he frequently called her to discuss personal matters, such as her relationship with her boyfriend.  Despite these serious allegations, the trial court granted summary disposition in favor of the state of Michigan.  Judge Saad joined in the Michigan Court of Appeals’ per curiam opinion affirming the trial court’s grant of summary disposition.  The corrections officer appealed his decision to the Michigan Supreme Court, which reversed and held that her claims constituted sufficient evidence to go to trial. 

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 e-mail he sent, a copy of which he mistakenly sent to Senator Stabenow as well.  In Judge Saad’s e-mail he displays not only shockingly bad manners, but appalling judgment and a possible threatening nature. 

In the e-mail 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 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 some attention.  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 e-mail 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.

Richard Griffin

I also have concerns about parts of the record of Richard Griffin.  As a judge on the Michigan Court of Appeals since 1989, Judge Griffin has handled and written hundreds of opinions involving a range of civil and criminal law issues. Yet, a review of Judge Griffin’s cases on the Michigan Court of Appeals raises concerns. He has not been shy about interjecting his own personal views into some of his opinions, indicating that he may use the opportunity, if confirmed, to further his own agenda when confronted with cases of first impression.

For example, in one troubling case involving the Americans with Disabilities Act (ADA), Doe v. Mich. Dep’t of Corrections, Judge Griffin allowed the State disability claim of disabled prisoners to proceed, but wrote that, if precedent had allowed, he would have dismissed those claims. Griffin authored the opinion in this class action brought by current and former prisoners who alleged that the Michigan Department of Corrections denied them certain benefits on the basis of their HIV-positive status. Although Judge Griffin held that the plaintiffs had stated a claim for relief, his opinion makes clear that he only ruled this way because he was bound to follow the precedent established in a recent case decided by his Court. Moreover, he went on to urge Congress to invalidate a unanimous Supreme Court decision, written by Justice Scalia, holding that the ADA applies to State prisoners and prisons. He wrote, “While we follow Yeskey, we urge Congress to amend the ADA to exclude prisoners from the class of persons entitled to protection under the act.”

In other cases, he has also articulated personal preferences that favor a narrow reading of the law, which would limit individual rights and protections. For example, in Wohlert Special Products v. Mich. Employment Security Comm’n, he reversed the decision of the Michigan Employment Security Commission and held that striking employees were not entitled to unemployment benefits. The Michigan Supreme Court vacated part of Judge Griffin’s decision, noting that he had inappropriately made his own findings of fact when ruling that the employees were not entitled to benefits. This case raises concerns about Judge Griffin’s willingness to distort precedent to reach the results he favors.

In several other cases, Judge Griffin has gone out of his way to interject his conservative personal views into his opinions. The appeals courts are the courts of last resort in over 99 percent of all federal cases and often decide cases of first impression. If confirmed, Judge Griffin will have much greater latitude to be a conservative judicial activist.

It is ironic that Judge Griffin’s father who, as Senator in 1968, launched the filibuster of the nomination of Supreme Court Justice Abe Fortas to serve as Chief Justice.  Former Senator Griffin led a core group of Republican Senators in derailing President Johnson’s nomination by filibustering his nomination on the floor of the United States Senate.  Eventually, Justice Fortas withdrew his nomination.  I know that the Republicans here will call any attempt to block Judge Griffin’s nomination “unconstitutional” and “unprecedented”, but his father actually helped set the precedent for blocking nominees on the Senate floor.

David McKeague

Finally, I turn to David McKeague, his record, and questions.  In particular, I am concerned about Judge McKeague’s decisions in a series of cases on environmental issues. In Northwoods Wilderness Recovery v. United States Forest Serv., 323 F.3d 405 (6th Cir. 2003), Judge McKeague would have allowed the U.S. Forest Service to commence a harvesting project that allowed selective logging and clear-cutting in areas of Michigan’s Upper Peninsula. The appellate court reversed him and found that the Forest Service had not adhered to a “statutorily mandated environmental analysis” prior to approval of the project, which was dubbed “Rolling Thunder.”

Sitting by designation on the Sixth Circuit, Judge McKeague joined in an opinion that permitted the Tennessee Valley Authority (TVA) broadly to interpret a clause of the National Environmental Policy Act in a way that would allow the TVA to conduct large-scale timber harvesting operations without performing site-specific environmental assessments. Help Alert Western Ky., Inc. v. Tenn. Valley Authority, 1999 U.S. App. LEXIS 23759 (6th Cir. 1999). The majority decision in this case permitted the TVA to determine that logging operations that covered 2,147 acres of land were “minor,” and thus fell under a categorical exclusion to the environmental impact statement requirement. The dissent in this case noted that the exclusion in the past had applied only to truly “minor” activities, such as the purchase or lease of transmission lines, construction of visitor reception centers and on-site research.

Judge McKeague also dismissed a suit brought by the Michigan Natural Resources Commission against the Manufacturer’s National Bank of Detroit, finding that the bank was not liable for the costs of environmental cleanup at sites owned by a “troubled borrower.” See Kelley ex rel. Mich. Natural Resources Comm'n v. Tiscornia, 810 F. Supp. 901 (W.D. Mich. 1993). The bank took over the property from Auto Specialties Manufacturing Company when it defaulted on its loans. The Natural Resources Commission argued that the bank should be responsible for taking over the cost of cleanup because it held the property when the toxic spill occurred, but Judge McKeague disagreed.

In Miron v. Menominee County, 795 F. Supp. 840 (W.D. Mich. 1992), Judge McKeague rejected the efforts of a citizen who lived close to a landfill to require the Federal Aviation Administration to enjoin landfill cleanup efforts until an environmental impact statement regarding the efforts could be prepared. The citizen contended that if the statement were prepared, the inadequacies of a state-sponsored cleanup would be revealed and appropriate corrective measures would be undertaken to minimize further environmental contamination and wetlands destruction. Holding that the alleged environmental injuries were “remote and speculative,” Judge McKeague denied the requested injunctive relief.

In Pape v. U.S. Army Corps of Engineers, 1998 U.S. Dist. LEXIS 9253 (W.D. Mich.), Judge McKeague seems to have ignored relevant facts in order to prevent citizen enforcement of environmental protections. Dale Pape, a private citizen and wildlife photographer, sued the U.S. Corps of Army Engineers under the federal Resource Conservation and Recovery Act of 1976 (RCRA), alleging that the Corps mishandled hazardous waste in violation of RCRA, destroying wildlife in a park near the site. Despite the Supreme Court’s holding in Lujan v. Defenders of Wildlife that “the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing,” and even though RCRA specifically conferred the right for citizen suits against the government for failure to implement orders or to protect the environment or health and safety, Judge McKeague dismissed the case, holding that plaintiff lacked standing to sue.

Judge McKeague found plaintiff’s complaint insufficient on several grounds, in particular plaintiff’s inability to establish which site specifically he would visit in the future. Plaintiff had stated in his complaint that he “has visited the ‘area around’ the RACO site ‘at least five times per year’ and that he has made plans to vacation in ‘Soliders Park’ located ‘near’ the RACO site in early October 1998, where he plans to spend his time ‘fishing, canoeing, and photographing the area.’” Comparing Pape’s testimony with that of the Lujan plaintiff, who had failed to win standing after he presented general facts about prior visits and an intent to visit in the future, Judge McKeague rejected Pape’s complaint as too speculative, based on the Court’s holding in Lujan that:

[Plaintiffs’] profession of an “intent” to return to the places [plaintiffs] had visited before – where they will, presumably, this time, be deprived of the opportunity to observe animals of the endangered species – is simply not enough to establish standing…. Such “some day” intentions – without any description of concrete plans, or indeed, even any specification of when the some day will be – do not support a finding of the “actual or imminent” injury that our cases require.

In concluding that “the allegations contained in plaintiff’s first amended complaint fail to establish an actual injury because they do not include an allegation that plaintiff has specific plans to use the allegedly affected area in the future,” Judge McKeague seemed to ignore completely the detailed fact description that Pape submitted in his amendment complaint. The judge further asserted that there was no causal connection between the injury and the activity complained of, and that, in any case, the alleged injury was not redressable by the suit.

On another important topic, that of the scheme of enforcing the civil and constitutional rights of institutionalized persons, I am concerned about one of Judge McKeague’s decisions. In 1994, (United States v. Michigan, 868 F. Supp. 890 (W.D. Mi. 1994)), he refused to allow the Department of Justice access to Michigan prisons in the course of its investigation into some now notorious claims of sexual abuse of women prisoners by guards undermines the long-established system under the Constitutional Rights of Institutionalized Persons Act.  That law’s investigative and enforcement regime is unworkable if the Department of Justice is denied access to State prisons to determine if enough evidence exists to file suit, and Judge McKeague’s tortured reasoning made it impossible for the investigation to continue in his district.

I know that concern for the rights of prisoners who have often committed horrendous criminal acts is not politically popular, but Congress enacted the law and expected its statute and its clear intent to be followed. It seems to me that Judge McKeague disregarded legislative history and the clear intent of the law, and that sort of judging is of concern to me.

I also note my disappointment in his answer to a question I sent him about a presentation he made in the Fall of 2000, when he made what I judged to be inappropriate and insensitive comments about the health and well-being of sitting Supreme Court Justices. In a speech to a law school audience about the impact of the 2000 elections on the courts, Judge McKeague discussed the possibility of vacancies on the Court over the following year. In doing so he felt it necessary to not only refer to -- but to make a chart of -- the Justices particular health problems, and ghoulishly focus on their life expectancy by highlighting their ages. He says he does not believe he was disrespectful, and used only public information. There were other, better ways he could have made the same point, and it is too bad he still cannot see that.

The people of the Sixth Circuit deserve better than this.  And the American people, the independent federal judiciary, the U.S. Senate, all deserve better than the double standard that is now squarely on display for all to see.

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