Senator Carl Levin has brought to a grinding halt the judicial-confirmation process for the United States Court of Appeals for the Sixth Circuit. He is a man of principle–a man who believes he must take a stand for what is right. Unfortunately for the rest of the country, the principle that he is standing for is nothing more than nepotism. And rather than try to talk sense into their colleague in an embarrassing political situation, Senate Democrats have closed rank around him.
This is no laughing matter. These vacancies on the Sixth Circuit–which serves as the main federal court of appeal in four battleground states, including Michigan and Ohio–have all been designated as “judicial emergencies” by the Administrative Office of the United States Courts. Four of the circuit’s 16 judge slots are unfilled, meaning that the demanding burden of handling all the criminal and civil appeals coming out of federal courts in those states falls upon a court at 75-percent strength. The vacancies have a long history, dating as far back as 1995.
President Bush has responded to this crisis by nominating four highly qualified Michigan residents to serve on the Sixth Circuit Court of Appeals. Among them, Henry Saad, Richard Griffin, David McKeague, and Susan Neilson have more than 45 years of judicial experience on state and federal benches. Neilson, McKeague, and Griffin were rated as “well qualified” by the American Bar Association–their highest available rating–and Saad received a “qualified” rating with several members of the ranking committee voting for well-qualified status. The foursome have drawn praise from the likes of the Michigan Chamber of Commerce, the UAW, past presidents of Trial Lawyers and Local Bar Associations and former President Ford. Judges McKeague, Neilson, and Saad were nominated in November 2001 and have languished in the Senate for almost three years. Three of these four candidates were recently approved by the Senate Judiciary Committee, largely along the party-line votes that have so regularly become a part of the judicial-confirmation process in that highly partisan committee. And so, last week, the three nominees, so long awaiting the chance to serve as federal appeals-court judges, finally got their vote on the floor of the Senate.
Well, not really. Instead, they each met with the same fate that has befallen six other candidates deemed too “controversial” to serve by Senate Democrats: the filibuster. Although all three were able to gather a majority of votes in support of their nominations within the Senate, each was put on ice by the minority party. Their offense? None of them were related to Carl Levin.
You see, Levin has a problem with all of President Bush’s Michigan nominees to the Sixth Circuit. He complains that, when Bill Clinton was president, some of his nominees to the same court were not confirmed by Senate Republicans. So he says, unless President Bush re-nominates two of those Clinton nominees to the Sixth Circuit, President Bush is not entitled to have anyone confirmed to that Court. Ignoring President Clinton’s long-suffering nominees, complains Senator Levin, “is not an acceptable tactic. It should not be allowed to succeed, and that is the fundamental issue here with these nominees.” High-minded Democratic colleagues of Senator Levin have joined in the chorus. As Senator Patrick Leahy recently complained, the president’s disregard of the preferences of Senators Levin and Debbie Stabenow as the home-state senators has “trampled on years of tradition, practice and comity. This sort of behavior may not easily be repaired, but must be exposed.”
Senator Levin is very upset that a particular Clinton-nominee never got her bench. Michigan Court of Appeals Judge Helene White was nominated by President Clinton to fill one of the open Sixth Circuit seats but was never confirmed by the Senate. So, like every nomination of a retiring president, her nomination was returned without approval at the end of President Clinton’s second term. This is neither a surprising nor an uncommon result. Indeed, John Roberts, who served as the first Bush administration’s number-two lawyer before the Supreme Court, waited more than eleven years between his original nomination by President George H. W. Bush to serve on the D.C. Circuit Court of Appeals and his eventual confirmation by the Senate two years after being re-nominated by President George W. Bush. No Democrat–be they Levin or Leahy–fought for his re-nomination by the Clinton administration as a matter of “tradition” or “comity.” It is just part of the reality of electoral politics: with the victor go the spoils.
But John Roberts was no Helene White. He didn’t have the singular qualification that could bring the entire democratic and judicial process to a standstill–he wasn’t Carl Levin’s cousin-in-law. You see, Judge White happens to be married to Senator Levin’s cousin, a fact that Senator Levin fails to emphasize whenever he rails on the Senate floor about President Bush’s unacceptable tactics. The real “fundamental issue” with President Bush’s judicial nominees to the Sixth Circuit, then, has nothing to do with the prerogatives of home-state senators and the grand traditions of that lofty institution. It is that none of them can make a scene at a Levin family picnic.
Senate Democrats have made a mockery of the judicial-confirmation process, turning aside any candidate that they would not themselves have chosen. Using every procedural rule in the book, they have stalled the confirmations of a substantial number of well-qualified nominees. They argue that only a handful of nominees have really been stopped, but in reality, nine of President Bush’s appellate-court nominees have been formally filibustered in the Senate–nine more than were filibustered in all of the preceding presidencies combined. That number will probably double before the election. Levin’s tactics, however, are simply appalling, representing the basest form of self-interest imaginable. The people of Michigan could hardly have expected their elected representative to put family relations above the best interests of the country when they sent Senator Levin to Washington. But that is precisely what they got.
Should President Bush cave into Levin’s demands? At the beginning of his term, President Bush did re-nominate several judges originally nominated by President Clinton, but not confirmed. It was meant to be a gesture of goodwill. What he got in return was not just several judges who disagreed with his philosophy of judging but a Senate that treated his nominees with greater hostility than any time in our nation’s history. He shouldn’t make the same mistake twice, especially with a senator who puts nepotism before country.
–Shannen W. Coffin, a Washington, D.C., attorney, is a former deputy assistant attorney general for the civil division of the U.S. Department of Justice.