Judiciary Committee Reports Sixth
Circuit Nominations
Michigan
District Nominee Also Reported To Senate
WASHINGTON
(Thursday, June 12, 2008) – The Senate Judiciary Committee today
reported to the Senate three nominations for lifetime
appointments to the Federal bench, including two nominations to
fill the final vacancies on the Sixth Circuit Court of Appeals.
The President’s nominations of Judge Helene White and Raymond
Kethledge to the appellate bench, and Stephen Murphy to the
Eastern District of Michigan, end a
decade-long impasse in filling vacancies on the Sixth
Circuit, which began when Senate Republicans blocked President
Clinton’s nominees to that circuit, leaving open four vacancies.
The package of Michigan nominees
sent by President Bush to the Senate in April resulted from
negotiations between Senate Judiciary Committee Chairman Patrick
Leahy (D-Vt.), Michigan Senators Carl Levin (D) and Debbie
Stabenow (D), and the White House. Leahy worked to expedite the
Committee’s consideration of the nominations, and chaired a
confirmation hearing for the three nominees on
May 7. Judge White, a four-time nominee under President
Clinton, fielded a firestorm of questions from Republican
members of the Committee. The American Bar Association in May
returned an updated rating of ‘well qualified’ for Judge White,
a 25-year veteran of the state bench in Michigan.
“The Michigan vacancies on the
Sixth Circuit have proven a great challenge,” said Leahy.
“Judge White was first nominated by President Clinton to a
vacancy on the Sixth Circuit more than 11 years ago, but the
Republican-led Senate refused to act on her nomination. Hers
was one of the scores of qualified judicial nominees pocket
filibustered by Republicans. This year, President Bush
reconsidered, and renominated her. I hope the Senate will
follow his example and confirm Judge White and Mr. Kethledge to
the last two vacancies on the Sixth Circuit.”
The Senate
confirmed three judicial nominations earlier this week. The
Committee has now reported 52 judicial nominations in this
Congress, including 10 nominations to fill circuit court
vacancies, and dozens of nominations to fill high ranking,
executive positions. Vacancy rates on the Federal bench are the
lowest in over a decade, and are almost 50 percent lower than at
the start of the Bush administration. Circuit court vacancies
have been reduced by two-thirds in the last eight years, from 32
to 11. There are fewer vacancies on 10 of the 13 Federal
circuit benches, and seven
circuits are without a single vacancy. Confirmation of Judge
White and Kethledge would reduce vacancies in the Sixth Circuit
to zero.
Judge White,
Kethledge and Murphy join two district nominees on the Senate’s
executive calendar. On
June 11, the Committee held another nominations hearing –
the eighth of the year – for four nominees to fill district
vacancies in New York.
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Statement Of Senator Patrick Leahy
(D-Vt.),
Chairman, Senate Judiciary Committee,
On Judicial Nominations
Executive Business Meeting
June 12, 2008
It is ironic that week after week,
as the Senate continues to make progress on filling judicial
vacancies, we hear a steady stream of grumbling from
Republicans. On Tuesday, we confirmed three more lifetime
appointments to Federal courts. None were confirmed by this
time in the 1996 session when a Republican majority ran the
Senate.
Yesterday, Senator Schumer chaired
a hearing for four more nominees for lifetime appointments to
Federal district courts, and I thank him for that. Today we
consider two of President Bush’s nominations to our nation’s
important Federal circuit courts – Judge Helene White and
Raymond Kethledge, both of Michigan, to the Sixth Circuit – as
well as Stephen Murphy’s nomination to the Eastern District of
Michigan. Yet the grumbling continues.
It is perhaps the ultimate irony
that here, as we take the extraordinary step of moving two of
President Bush’s circuit court nominees in June of a
presidential election year, we are criticized for, of all
things, moving too quickly. The other side of the aisle is up
in arms claiming that we are moving the “wrong” Bush nominees.
Never mind that these Sixth Circuit nominations break a
decade-long impasse and would fill the last two vacancies on
that circuit—compared to the four vacancies the Republican
majority left by failing to move President Clinton’s nominees
for three years. When, as chairman, I scheduled a hearing and
vote for Judge Julia Smith Gibbons of Tennessee, and then for
Judge John Marshall Rogers of Kentucky, we were able to break an
impasse on the Sixth Circuit that had extended for five years.
Confirmation of Judge White and Mr. Kethledge of Michigan would
complete the process by filling the two remaining vacancies on
the Sixth Circuit.
Allowing the Committee even to consider these nominations by
President Bush stands in sharp contrast to the actions of Senate
Republicans who refused to consider any of the highly-qualified
nominations to the Sixth Circuit Court of Appeals during the
last three years of the Clinton administration. Those nominees
included Judge White, herself; Kathleen McCree Lewis, an
accomplished attorney and the daughter of former Solicitor
General of the United States and former Sixth Circuit Judge Wade
McCree; and Professor Kent Markus of Ohio, who was supported by
his home state Senators, both Republicans.
When Republicans discuss the pace
at which we are considering judicial nominations, something is
always wrong. When I schedule hearings and proceed to consider
the nominees of this President – President Bush – for lifetime
appointments to the Federal bench, I am criticized for moving
too quickly or too slowly. It is like the story of Goldilocks –
the porridge is always too hot or too cold. But Goldilocks is a
children’s story. We should not be playing children’s games
with something as important as judicial nominations.
I regret to report that when I
tried to expedite consideration of the three nominees on the
agenda today, I encountered only criticism from the Republican
side of the aisle. Sadly, Judge White bore the brunt of the
unfair criticism at the hearing. Last month, Senator Brownback
publicly apologized for his actions at the hearing, and I
commended him for doing so. Now that the nominees have answered
the scores of time-consuming questions Republicans sent to them,
and we have the updated ABA ratings so much emphasized by
Republicans in connection with these nominations, we can move
forward.
At the May 7 hearing for these
nominations, we heard a good deal of criticism about our
willingness to proceed based on Judge White’s earlier ABA
rating, although we heard nothing about the fact that Mr. Murphy
had been renominated for a different judicial position and
needed a new ABA review and rating. Of course, I was
endeavoring to expedite our proceedings in light of the
discussion between the Majority Leader and Republican leader and
in light of what I thought was the Republicans’ interest in
confirming three additional circuit court nominees by Memorial
Day. Judge White’s updated ABA rating of “well qualified”
vindicates our actions. I hope that after more than a month of
questioning and consideration, we will not hear any more talk
about a rush to judgment.
Judge White has been now been
nominated by Presidents from both parties, by a Democratic
President and by a Republican President. She has served as a
Michigan state court judge for more than 25 years. In addition,
she has been active as a member of the legal community and of
community organizations including COTS (Coalition on Temporary
Shelter), JVS (Jewish vocational services), and the Metropolitan
Detroit Young Women’s Christian Association. When the most
partisan President in modern history, one responsible for
sending us so many divisive judicial nominations, nominates a
Clinton judicial nominee, it should send a signal. This
nomination should allow us to make further progress in our
efforts to remove judicial nominations from partisan politics.
She should be a consensus confirmation. I hope that Republican
and Democratic Senators will join together to support her
nomination and the entire package of Michigan nominations that
President Bush has sent to us after consultation with Senators
Levin and Stabenow.
Judge Helene White has served on
the Michigan Court of Appeals for the past 15
years, having been elected by the people of Michigan in 1992.
Before that she served for a dozen years on the Wayne County
Circuit Court, the Common Pleas Court for the City of Detroit,
and the 36th District Court of Michigan. She is
described on the Bush White House website as “an experienced and
highly qualified judge, who is known for her intellect, work
ethic, and demeanor.” I could not agree more.
As of today, Republicans who
opposed Judge White’s nomination back in 1997, 1998, 1999 and
2000 have yet to explain, justify or even acknowledge their
treatment of her. It has been more than 11 years since her
initial nomination. As this Committee finally considers her
nomination, I will be interested to see if Republican Senators
are willing to explain their inaction for the entire last
four-year term of President Clinton’s second term, while
vacancies on the Sixth Circuit rose to four. It will be
interesting to see if those who oppose her today will do so on
the basis of decisions she rendered and actions she took in
those years.
Oddly, Republican attacks on Judge
White have focused in part on what they term a lack of
experience. Somehow, someone who has been an appellate judge
for 15 years – longer than Ray Kethledge has practiced law – and
who has served as a judge for well over two decades is now not
experienced enough to be a Federal appellate court judge.
Some Senators suggested that her
lack of experience with specific Federal issues that never come
before even the most experienced state judge was a problem.
They ignore the fact that judges always have to learn new areas
of the law as new cases come before them, and no one is better
prepared to do that than an experienced jurist like Judge
White. Indeed, Mr. Kethledge was gracious enough to concede at
the hearing that he too lacked experience in the same specific
areas of Federal law, and yet his qualifications have not been
called into question.
Should we conclude from the
Republican attacks that no state court judge can be confirmed to
sit on a Federal court? Certainly Jennifer Elrod, a state court
judge with far less experience than Judge White, whom we
confirmed to the Fifth Circuit earlier this year, was not held
to that standard by the Republicans. Indeed, I recall what
Senator Cornyn said about her nomination: “I would point out
that when it comes to experience, most of us, when we apply for
a new job, or a nominee, have rarely done that job before. So
the question is not whether you have actually done that job
before, it's whether you are likely to do a good job, if
confirmed.”
Others have pointed to a few cases
in which Judge White was reversed. Of course, these were cases
in which Judge White joined a unanimous panel of her court, or
in one instance, where she agreed with the rest of the court on
the law and differed only on the facts. More to the point, they
were cases of such limited precedential value that the decisions
were not even published. I hope that in a long career spanning
thousands of decisions, she will not be judged by a few
unremarkable cases. Republicans have certainly asked us not to
focus on a small handful of cases even when the cases in
question were far more noteworthy.
Republicans have simply not been
able to point to anything in Judge White’s long and
distinguished career that should give us pause. So I hope
consideration of her nomination does not turn instead on
speeding tickets or some of the other curious topics alluded to
in her hearing. If that becomes the standard, I fear we will
not have any judges or, for that matter, any Senators qualified
to serve. I fail to understand why Republicans seem to be
trying so hard to find reasons not to support a nominee selected
and supported by President Bush.
Republicans contended, in
connection with Judge White’s nomination, that the ABA rating
was of great importance. I hope then that they will find
persuasive the ABA’s determination that she is well qualified to
serve as a Federal circuit court judge. As I said that I would,
I have ensured that we are proceeding in an orderly fashion,
that all Senators have had a fair opportunity to question the
nominees and that we have all the materials we need in order
fairly to consider these nominations, including the updated ABA
ratings for Judge White and the one received just last week for
Mr. Murphy.
Our second Sixth Circuit nominee
is Raymond M. Kethledge, a young man who has had a promising if
brief legal career. I am glad to see that he has performed pro
bono legal services, something I have always thought lawyers
should do.
The Michigan vacancies on the
Sixth Circuit have proven a great challenge. I want to commend
Senator Levin and Senator Stabenow for working to end years of
impasse. I have urged the President to work with the Michigan
Senators and, after seven years, he finally has. We have come a
long way since I became Chairman in 2001 when the Sixth Circuit
was in turmoil and nominations had been road blocked for years.
At that point there were four vacancies on the Sixth
Circuit.
Judge White was
first nominated by President Clinton to a vacancy on the Sixth
Circuit more than 11 years ago, but the Republican-led Senate
refused to act on her nomination. She waited in vain for 1,454
days for a hearing, before President Bush withdrew her
nomination in March 2001. Hers was one of the scores of
qualified judicial nominees pocket filibustered by Republicans.
This year, President Bush reconsidered, and renominated her. I
hope the Senate will follow his example and confirm Judge White
and Mr. Kethledge to the last two vacancies on the Sixth
Circuit.
One thing that has been apparent
from the outset of the year is that Republicans hope, by
ignoring their history of pocket filibustering more than 60 of
President Clinton’s judicial nominations while they were in the
majority of this Chamber, to simply erase their history. The
history is clear. With respect to circuit court vacancies,
Democrats have reversed course from the days during which the
Republican Senate majority more than doubled them. We have
lowered the 32 circuit court vacancies that existed when I
became Chairman of the Judiciary Committee in the summer of 2001
to 11. Circuit vacancies have not been this low since 1996,
when the Republican tactics of slowing judicial confirmations
began in earnest. If we can confirm Judge White and Mr.
Kethledge, we can reduce circuit court vacancies to single
digits for the first time in decades.
I am sure there are some who
prefer partisan fights designed to energize a political base
during an election year, but I do not. I saw the story in
Wednesday’s Roll Call that includes the headline “Divided GOP
Settles on a Fight Over Judges” with all the discussion by
Republican Senators of the politics that fuels their efforts to
appeal to “conservative activists” and “ignite base voters” and
find an issue that “serves as a rare unifier for Senate
Republicans” and their presidential nominee.
The American people do not want
judicial nominations rooted in partisan politics. They want
federal judges who understand the importance of an independent
judiciary. Our independent courts are a source of America’s
strength, endurance and stability. Our judicial system has been
the envy of the world. The American people expect the Federal
courts to be impartial forums where justice is dispensed without
favor to the right or the left or to any political party or
faction.
The only lifetime appointments in
our government, these nominations matter a great deal. The
Federal judiciary is the one arm of our government that should
never be political or politicized, regardless of who sits in the
White House. I will continue in this Congress, and with a new
President in the next Congress, to work with Senators from both
sides of the aisle to ensure that the Federal judiciary remains
independent, and able to provide justice to all Americans,
without fear or favor.
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