Although it was overshadowed by the beginning of war, on Capitol Hill Wednesday there was a major escalation in the conflict between Senate Democrats and the White House over the president’s judicial nominees.
The escalation had nothing to do with the ongoing Democratic filibuster over appeals-court candidate Miguel Estrada. Instead, it involved a Democratic decision to block, and, at least for the moment, kill a total of four Bush nominees to the federal courts of appeals.
Acting in concert, Michigan Democratic Sens. Carl Levin and Debbie Stabenow told the Judiciary Committee they will block the nominations of Richard Griffin, David McKeague, Susan Bieke Neilson, and Henry Saad to the Sixth Circuit Court of Appeals. In addition, Levin and Stabenow said they will block the nomination of Thomas Ludington to a seat on the U.S. District Court. That means the two senators are attempting to kill every Bush nominee from the state of Michigan.
Levin and Stabenow stopped the nominations by returning negative blue slips, which are the documents in which senators indicate approval or disapproval of judicial nominees from their home states.
Blue slips are a Senate custom with a long and controversial history, but both parties concede it is nearly impossible for a nominee of either party to win confirmation over the objections of both of his or her home-state senators. That means the nominations of Griffin, McKeague, Neilson, Saad, and Ludington are effectively dead.
It was an extraordinary move on the part of Levin and Stabenow, a kind of Wednesday-night massacre that sent Republicans scrambling to research whether such wholesale obstruction had any precedent in Senate history, and what a GOP response might be.
The move is all the more remarkable because much of the Sixth Circuit is in what the Administrative Office of the U.S. Courts calls a “judicial emergency.” The court normally has 16 members, but half of those seats are now empty.
The Levin/Stabenow maneuver is the culmination of a conflict that has been years in the making and involves Democratic accusations that Republicans mistreated appeals court nominees selected by President Clinton.
When President Bush took office, Levin and Stabenow demanded that he renominate two Clinton appeals court nominees from Michigan, Helene White and Kathleen McCree Lewis, whose nominations had not been acted on by the GOP-controlled Senate. White is married to Sen. Levin’s cousin.
In a letter sent yesterday to White House counsel Alberto Gonzales, Levin, and Stabenow wrote, “On more than one occasion, the White House counsel has stated that some nominees during the previous administration were wrongly treated….We have said repeatedly that it would be wrong for the president to seek confirmation of his nominees to the Michigan seats on the Sixth Circuit before the acknowledged wrong was corrected.”
The White House has refused the demand, saying that it would be an unprecedented surrender of the president’s constitutional authority to nominate federal judges.
The story if Levin’s and Stabenow’s demands and the White House’s response are extensively documented in two letters written by Gonzales more than a year ago. One was to the Senate Judiciary Committee’s then-chairman Patrick Leahy on August 17, 2001, and the other was to Levin and Stabenow on November 2, 2001.
“Although I understand [Levin's and Stabenow's] desire to have the president renominate two of President Clinton’s candidates for the court of appeals…we believe it would be unfair to expect the president to do so,” Gonzales wrote to Leahy that August. “The net result of our discussions is an apparent standoff in which the two Michigan senators are attempting (inappropriately, in my view) to use the threat of negative blue slips against President Bush’s Michigan circuit nominees to compel the president to renominate Clinton nominees based on grievances in which President Bush played no part.”
Despite the Democrats’ threats, the White House stood firm. Gonzales continued: “To my knowledge, before President Bush renominated Roger Gregory to the Fourth Circuit, no president had ever nominated to a court of appeals an individual previously nominated to the court of appeals by his predecessor from a different party. For any senator to insist that this extraordinary and historic act be repeated is simply not fair. Appointments to the federal courts of appeals are uniquely matters of presidential prerogative.”
Finally, Gonzales gave Leahy a bit of history. “More than 50 nominations to the federal courts lapsed without Senate action at the end of the previous Bush administration in 1992,” Gonzales wrote, “including a nominee to the Sixth Circuit from Michigan, John Smietanka, who had waited almost a year for a hearing and never received one. No one ever attempted to claim that fairness or any other consideration obliged President Clinton to resubmit these names, and he did not.”
Although Gonzales suggested there was room for compromise in the standoff, there was no solution. In fact, Levin and Stabenow significantly ratcheted up their demands, threatening to block not only nominees from their own state, but also for the entire Sixth Circuit, which includes Ohio, Kentucky, and Tennessee in addition to Michigan. The White House still refused to budge, calling the threat a distortion of the Senate’s constitutional advise and consent role.
Negotiations between the two sides continued in the fall of 2001. Levin and Stabenow wanted the president to set up a bipartisan commission to select judicial candidates from Michigan (something Bush had done in California, but only to select lower, district court nominees; the president pointedly said that circuit court nominees would be chosen by the White House alone.) The White House again refused, and in November 2001, Gonzales laid out the administration’s argument at length, this time directly to Levin and Stabenow.
“I would hope that you would…acknowledge and respect the powers of appointment that rightfully belong to President Bush under the Constitution and would not continue to insist on unprecedented devices that would trench upon those powers,” Gonzales wrote. “Circuit court appointments are uniquely matters of presidential prerogative, and nowhere in the nation has the president surrendered his power to select circuit court nominees to a commission, bipartisan or otherwise.”
Gonzales expanded on the theme of fairness that he had begun in his earlier letter to Leahy. “We note that the record of unfair treatment of Michigan judicial nominees may not be as one-sided as your letter suggests,” Gonzales wrote. “At the end of President George H.W. Bush’s administration, two Michigan nominees to the federal courts, John Smietanka and Henry Saad, were denied hearings by the Democratic Senate and failed to attain confirmation. Neither man ever claimed a right to be renominated by the new administration, and all participants in the process accepted and adhered to the time-honored understanding that the accumulated inventory of judicial vacancies at the start of a new presidential term was the new president’s to fill.”
Gonzales said the White House had offered to consider the two failed Clinton circuit court nominees, White and Lewis, for nomination to lower federal courts. “In our view, this was a proposal that reflected exceptional generosity, good faith, and respectful bipartisanship,” Gonzales wrote. “Indeed, no similar generosity was ever shown to John Smietanka or Henry Saad during the previous administration.”
In the end, none of the talking did any good, and yesterday, Levin and Stabenow blocked every nominee from Michigan.
The move suggests that the Democratic strategy to block Bush judges extends far beyond selected targets like Miguel Estrada and Priscilla Owen. Indeed, it appears that Democrats may plan to use a variety of techniques to try to block every, or nearly every, Bush nominee to the federal appeals courts.