Press Conference Regarding: Sixth Circuit Court of Appeals Judicial Nominees

HEADLINE: PRESS CONFERENCE REGARDING: SIXTH CIRCUIT COURT OF APPEALS JUDICIAL NOMINEES
 
PARTICIPANTS: SENATOR BILL FRIST (R-TN); SENATOR MITCH MCCONNELL (R-KY); SENATOR LAMAR ALEXANDER (R-TN); SENATOR JOHN CORNYN (R-TX); REPRESENTATIVE DAVE CAMP (R-MI); REPRESENTATIVE JOE KNOLLENBERG (R-MI); REPRESENTATIVE THADDEUS MCCOTTER (R-MI); REPRESENTATIVE STEVE CHABOT (R-OH); AND REPRESENTATIVE ANNE NORTHUP (R-KY)

BODY:
SEN. FRIST: Good afternoon. On Monday of this week, I took the rare, but not unprecedented step, to discharge the Judiciary Committee of the four nominations to fill the Michigan seats to the Sixth Circuit Court of Appeals. I took that step because the people of the Sixth Circuit called upon us to act. I received a remarkable letter from the Sixth Circuit scholars outlining just how the delay of these nominees is actually hurting the people of Michigan, of Ohio, of Tennessee and Kentucky.

Last week, the legislature of Michigan introduced a concurrent resolution asking the United States Senate to act. In the last 24 hours, over 2,000 Michigan citizens have signed a petition urging the obstruction in the United States Senate to end. That's 45 signatures every minute.

I took this step because the Judiciary Committee has sought to satisfy the two Michigan senators under its traditional practices, but this has gone on now for well over one year for every one of the four nominees. All four of the vacancies in question have been deemed "judicial emergencies" by the Administrative Office of the United States Courts. The vacancy rate in the Sixth Circuit is 25 percent, even while the Sixth Circuit is the third-busiest Court of Appeals in the country -- the third busiest. The Sixth Circuit is the 11th in timeliness of its disposition of its cases -- 11th; only one circuit court takes longer to issue its opinions.

I believe it is simply not fair to the individual nominees, to the president of the United States, or to the people of the Sixth Circuit to allow this obstruction to continue. If the committee will not act on these nominees, than the majority of the Senate will do as the Constitution intended.

I'll now turn to Majority Whip Mitch McConnell.

SEN. MCCONNELL: As a senator from the Sixth Circuit, I can attest to what the majority leader's just indicated is the situation. The court is 25 percent vacant. This is severely handicapping litigants, delaying litigation substantially, all because the two senators from Michigan are apparently suggesting to the administration that they should get to name the circuit judges. After all, it was the president who won the election. The president is the one under the Constitution who gets to nominate judges. We have historically been very deferential to blue slip procedure, which is, as you know, basically a sign-off on moving forward by the senators at the district court level. But at the circuit court level, senators don't get to pick circuit court judges. Every administration of both parties has viewed circuit court selections as a presidential prerogative. We do have a good deal more to say, as all of you know, about who gets to be a district judge. But circuit judges have not historically been senatorial prerogatives.

So here you have a situation where the two senators from Michigan, who are of the opposite party of the president, apparently are requesting something that even Republican senators don't have, which is the right to name judges, and in return for that are holding up nominees from their own state to be on the circuit. This is a truly bizarre and unacceptable situation. These are all fine nominees. One, for example, would be the first Arab American in American history to become a member of a U.S. circuit court of appeals. These judges should move forward promptly. They should be -- there should be hearings, and they should be brought to the floor for final disposition.

SEN. FRIST: Lamar?

SEN. ALEXANDER: Thank you.

I applaud Senator Frist's leadership on this. This is an unprecedented obstruction of the federal appellate courts, and it shows contempt for the citizens of my state, Tennessee. This is a big circuit: Ohio, Michigan, Kentucky and Tennessee. It has a lot of important business. There are death penalty reviews that have been delayed for more than a year. In one case, a client from Cincinnati died waiting for an appeal. Law enforcement officers who are doing their job in Memphis and Nashville and Knoxville cannot do their job, knowing that the convictions that are obtained in the federal courts will be upheld and reviewed appropriately in the federal courts of appeal (sic). This is a circuit with 16 judges, and there have been six vacancies which date back to 1995. President Bush has four well- qualified appointments there. Three have been held up for nearly two years. And so the senators from Michigan are, by doing this, hurting the people of Tennessee and hurting the people of Kentucky, hurting the people of Ohio, and they're hurting the people of Michigan.

And I applaud the leader for taking this step. I hope very much that the senators from Michigan will reconsider their action. Justice delayed is justice denied, and this is unprecedented, and ought to be an embarrassing, obstruction.

SEN. CORNYN: I, too, want to add my voice to those who are calling for the release of the Michigan Four. We need to fix the broken judicial confirmation process of the United States Senate. We are currently experiencing two unprecedented filibusters of two highly qualified nominees. And what this obstruction represents is further politicalization (sic) of the judiciary.

Judges should be above and beyond politics. But unfortunately, due to this obstructionist activity, both in the filibusters and unprecedented use of the blue slip, where a minority gets to dictate the terms to a majority in the Senate that stands ready to confirm these nominees, we have the Constitution turned on its head. And I believe this action is an important step in trying to let the American people know exactly what is happening, something that is very bad for the quality of justice in this country and is very bad for the judiciary and should not be part of this politicalization (sic) process.

REP. CAMP: I'm Dave Camp from Michigan. I'm joined by a number of my House colleagues from Michigan, Ohio and Kentucky. And I know they'll all want to have an opportunity to talk to you. But as Senator Frist has said, we have an emergency situation in the Sixth Circuit. And that could be -- it could be overcome if the obstruction in the Senate would just end. And traditionally, four of these seats have gone to the state of Michigan, not by law, but by custom. And we have four qualified nominees that have been blue-slipped by our senators. And it's really an unconscionable, unwarranted and unreasonable delay. And if the political nonsense would stop, we could really get to this justice at hand. And it really is hurting the people of Michigan and the whole region -- the whole circuit. So I would urge our senators to let the hearing come forward, let these qualified nominees -- the ABA has qualified them -- let them come forward, let them have their hearing and their vote in the Senate.

Thank you.

SEN. FRIST: Joe?

REP. KNOLLENBURG: I'm Joe Knollenburg, from Michigan, obviously. And I know all four of these candidates. They happen to be highly qualified. They have met every requirement. Just referencing one -- and Senator McConnell, you mentioned the first Arab American who's been nominated to the court of appeals. Not only this time around, but he was nominated in 1992. And that didn't happen because of the change in presidents in 1992. Mr. Bush, senior, was the president at that time.

If you look at this -- and I'll be extremely brief on it, but if Congress, for example, if the House and the Senate were losing or had lost 25 percent of their membership -- that's exactly the situation with respect to the court -- how well would we do? What kind of -- how would we function, if 25 percent of our membership in the House and a like number in the Senate -- I think that tells you the story pretty much of what we're dealing with here. And frankly, we've waited a long time; about two years, I think, is long enough.

So, I want to salute the leader, Senator Frist, obviously, and the other members that are here that feel the same way. We do have a voice here, and I think -- particularly, I can say that 10 million Michiganians are being left out, not to mention, obviously, some other folks from Ohio, Kentucky and Tennessee. So, I salute everything that's taken place here, and I look forward to some resolution on this.

Thank you.

REP. MCCOTTER: Thaddeus McCotter from Michigan. I'd just like to echo the remarks of my colleagues, Joe and Dave. It seems to me that what's happened in this process of obstruction is that you have a procedural device being used -- (inaudible) -- outcome that is unfair to the individuals put forward. If a majority of the Senate is prepared to approve of these individuals, they should not then be forced to meet the barrier of a super-majority, which is what the Democratic minority is endeavoring to do. It seems to me that the purpose of the Advice and Consent Clause is that if someone is professionally unqualified or morally unfit, they should not be approved, and that is the responsible role of the Senate. What's happened now is they're trying to add a new criteria, which is political ideology, and I think that's a mistake and will have drastic ramifications for the entire country.

Thank you.

REP. CHABOT: I'm Steve Chabot. I represent Cincinnati, Ohio, the 1st District of Ohio. And I'm Senator Cornyn's counterpart in the House. I'm chairman of the Subcommittee on the Constitution. And when you have a circuit court that's been declared in judicial emergency, that clearly tells you there's a problem here and needs to be dealt with. And I'd like to read two brief parts from editorials from Cincinnati newspapers.

I'll start with the Cincinnati Post, which said that -- they reported in 2001 that Cincinnati attorney Elizabeth McCord waited 15 months just to have oral arguments scheduled for her client's appeal in a job discrimination suit. And as Senator Alexander mentioned, during that period of time, she died. The article described delays like this as commonplace, and this is just an unacceptable situation that's been allowed to continue for far too long.

The Cincinnati Enquirer, in its article published in January of this year, stated the vacancies in the 6th Circuit have caused a backlog of cases that has delayed decisions on some of the biggest constitutional issues of the day. And in light of some recent Supreme Court decisions, I think it's absolutely clear that the courts have to operate in a timely fashion. Many of the issues that have been bandied about, talked about, considered for many years now, are coming to a head, and it's absolutely critical that every one of the circuit courts be up to snuff. And we're 25 percent -- there should be 16; there are only 12 in the 6th Circuit right now.

And as the chairman of that subcommittee, the Subcommittee on the Constitution, we've looked at this situation; we're going to continue to look at it.

And if you look back to the -- even the Founding Fathers, it's clear that they had in mind, if you look at the Federalist Papers, particularly number 76, Alexander Hamilton talked about the president is "bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature."

So he was clearly saying that according to the Constitution, that the entire Senate should look at these judicial appointments; it shouldn't be two senators, or even a minority, it should be the entire branch of the legislature. That's what the Constitution says, and we ought to in this case follow the Constitution.

Thank you.

REP. NORTHUP: Well, let me just thank the leadership in the Senate. One, of course, is one of my favorite senators, Senator Mitch McConnell, who I have such great respect for and have appreciated working with. But also, the many members from the Michigan delegation that are adding their voices to those of us who are outside of Michigan but are equally affected by this delay.

When you talk to constituents in Kentucky or Ohio, anyplace in this region, they don't understand blue slips; they don't understand why there aren't the judges in place when they're waiting for their case to be heard. And so they are eager to have their voice heard. The senators in Michigan -- the people in Michigan asking them if they will please send the message to their senators that denying justice not only to the people in that state, but the people in the entire region is simply wrong.

We're a country that believes everybody deserves their day in court. Your day in court only comes if there is a judicial presence that can handle cases efficiently and effective.

So thank you, members of the Michigan delegation. I know that you're as eager as all of us are to see this resolved. Thank you.

SEN. FRIST: Anybody else?

Any questions of any of us?

Q Senator, you mentioned the possibility of having hearings on these nominees. If the leadership decides to go forward with hearings on these nominees, despite the negative blue slips, are you risking turnabout when the shoe is on the other foot of Democrats -- (off mike)?

SEN. MCCONNELL: Well, there was one interesting observation, I believe by Senator Durbin, yesterday when the majority leader made the motion to discharge, he said, "Well, there haven't been hearings." Well, maybe there should be hearings. And I think Senator Hatch has been hoping -- he can speak for himself, but I think he's been hoping that this obstructionism would end. But it has been, I think, the view of this Judiciary chairman, and others, that blue slips on Circuit judges is not dispositive.

So what I hope the chairman of the Judiciary Committee will do is to proceed with hearings and proceed with action. I think Senator Hatch has a different view when it comes to District Court judges, that I suggested earlier, where senators play a much greater role in recommending to the administration and actually sort of signing-off on who gets those jobs than at the Circuit Court level, which is really not our choice in the first instance.

Q Why not, since this is an unusual -- the discharge petition is an unusual way of doing this, why not just allow -- why doesn't Senator Hatch -- (inaudible)? Why do it through this means?

SEN. MCCONNELL: Well, I think he's considering that. We wanted to look at all of our options. And we asked consent to go to the discharge petition; that was denied. So we know that that option is not available. Clearly, the hearing option and action on the committee could be something the chairman and the members of the committee decide to do.

Senator Cornyn is a member of the committee.

I don't know, do you want to make any observations, John?

SEN. CORNYN: Well, I would just say that this shouldn't be about politics, this should be about principle. And the principle that's important here is that when a bipartisan majority of the United States Senate stands ready to confirm a judicial nominee, that one or two senators should not be able to stop that process in its track by use of the blue slip process or by an unconstitutional filibuster that we're seeing now from a minority, particularly the leadership of the other party when it comes to Miguel Estrada and Priscilla Owen.

The principle is: In a democracy, majorities rule. And all we are asking for, the principle we want to vindicate and uphold here is when a bipartisan majority of the United States Senate stands ready to vote "aye" for the president's judicial nominees, that vote ought to go forward.

Q Senator McConnell, I don't recall a fuss being made when Senator Helms single-handedly blocked every one of President Clinton's nominees to the Fourth Circuit. Has the level of threshold changed -- (inaudible) -- anger up there now that there's a Republican in the White House?

SEN. MCCONNELL: Well, I think -- you know, I think the fundamental issue here is -- at the risk of being repetitious -- whether two senators from a state can prevent the consideration of the president's nominations for Circuit Court.

Q That's what Senator Helms did.

SEN. MCCONNELL: Well, the chairman of the committee at the time may have had that view; you'll have to ask Senator Hatch. But it's not my view, which I'm free to express. That given the fact that we don't get to select Circuit judges -- and Senator Cornyn and I are in the same party as the president -- it seems to me inappropriate for the other party to assume that they can dictate choices to the president for the Circuit Court, and failing to do that, be in a position to prevent action on them.

Again, this is Senator Hatch's decision, the committee's decision. But my view is hearings ought to be held on these nominees, and they ought to move forward.

Q Senator McConnell?

SEN. MCCONNELL: Yeah?

Q (Off mike) -- to anybody on the committee of what their view is?

SEN. MCCONNELL: I think they'll have to speak for themselves, but it's no secret that they're holding up all four of these nominees and the 6th Circuit is 25 percent vacant. The 6th Circuit has been involved in a lot of controversy, as you know, some of it widely assumed to be attributed to the fact that they're not up to full complement, and I think it's creating an enormous problem.

Q I believe that their argument is that their -- that nominees from President Clinton were held up by Senator Abraham when he was in office, and that afterwards some compromises were made and some of those nominees were reconsidered. Is there no --

SEN. MCCONNELL: Yeah, I mean, that's my point. I mean basically, what they're saying here is: We want to pick some judicial appointments.

Q But couldn't a compromise be made, and maybe some of those people being heard, as well as those --

SEN. MCCONNELL: The last time I looked at the Constitution, the president was empowered to make judicial appointments. If the senators from Michigan were allowed to, in effect, make judicial appointments, than why not the senator from Kentucky or from Texas or from anywhere else? I personally would object to a deal between the administration and the Michigan senators that allowed Michigan senators to pick circuit court nominees that I've not been able to pick for my state. So, I think we ought to follow the regular procedure, which is the president nominates, the Senate advises and consents.

Anyone else?

Okay, well, thanks a lot.

Q Thank you.