How Appealing Extra

How Appealing Extra

Wednesday, April 16, 2003



April 2, 2003

Dear Senators Levin and Stabenow:

I respectfully write with regard to your March 19 joint letter to Chairman Hatch, which accompanied your return of blue slips indicating your opposition to a hearing and vote for five pending Michigan nominees for federal judicial seats. Your letter explains that you are objecting to these Michigan nominees – and will continue to object to future Michigan nominees – in order to protest the fact that two of President Clinton’s judicial nominees from Michigan did not receive hearings.

Although you have returned negative blue slips for all of these nominations, you do not indicate any opposition based upon qualifications to any of the five individuals in question. Nor did you express any such specific opposition during our pre-nomination consultations with your offices regarding these individuals. (This consultation history is described more fully in the attached response to an inquiry from Chairman Hatch.) In our judgment, all five nominees are indeed well qualified to serve on the federal bench, and deserve prompt hearings and votes. I will briefly review their qualifications below, before turning to your complaints regarding President Clinton’s nominees and, finally, addressing your blue slips.

I. The Nominees

David McKeague, Susan Bieke Neilson, Henry Saad, Richard Griffin and Thomas Ludington are well qualified for the judicial seats for which they have been nominated.

Judge McKeague has served on the U.S. District Court for the Western District of Michigan since 1991, when he was unanimously confirmed by the then-Democrat-controlled Senate. During his tenure as a district judge, he has on seven occasions been designated to sit on a panel of the Sixth Circuit. Chief Justice Rehnquist appointed Judge McKeague to serve on the Judicial Conference’s Committee on Defender Services, where Judge McKeague chairs the funding subcommittee. The Chief Justice also appointed Judge McKeague to the District Judges Education Committee of the Federal Judicial Center, which Judge McKeague chairs. The American Bar Association (“ABA”) has given Judge McKeague a “Well Qualified” rating for the Sixth Circuit.

Judge Neilson has served on the 3rd Judicial Circuit Court of Michigan since 1991. She has written numerous articles and was co-editor and author of Michigan Civil Procedure, a two-volume treatise on all areas of Michigan civil practice. This treatise was selected by the Michigan Judicial Institute for purchase on behalf of every trial judge in the State of Michigan and received the “Plain English Award” from the State Bar of Michigan. The ABA has unanimously rated Judge Neilson “Well-Qualified” for the Sixth Circuit.

Judge Saad has served on the Michigan Court of Appeals since 1994. During his 1996 retention election, he received broad bipartisan support, including endorsements from the Michigan Chamber of Commerce and the United Auto Workers. Judge Saad is also active in the community. He has served as President of the Wayne State University Law School Alumni Association, Chairman of the Board of the Oakland Community College Foundation, and as a Board Member on the National Conference of Christians and Jews. In 1995, he received the Arab-American and Chaldean Council Civic and Humanitarian Award for Outstanding Dedication to Serving the Community with Compassion and Understanding. The ABA has given Judge Saad a “Qualifed” rating. It also bears noting that Judge Saad was nominated to the Eastern District of Michigan by President George H.W. Bush a decade ago, but did not receive a hearing.

Judge Griffin has served on the Michigan Court of Appeals since 1989. He has served the bench and bar in a number of volunteer capacities. He is a former member of the federal judicial selection committee for the Western District of Michigan, and currently serves as Chairman of the Quality Review Committee for the Michigan Court of Appeals. The ABA has rated Judge Griffin “Well Qualified” to serve on the Sixth Circuit.

In sum, all four of the President’s Sixth Circuit nominees from Michigan have extensive experience on the state or federal benches; all are active in their communities and in the bar; all have extensive support in Michigan; and all have received Well Qualified or Qualified ratings from the ABA. We respectfully submit that by any traditional standard, Judges McKeague, Neilson, Saad and Griffin are superbly qualified candidates for the vacant seats on the Sixth Circuit – seats that have been designated “judicial emergencies” by the Judicial Conference.

Thomas Ludington is likewise fully qualified for the district court. He has considerable experience on the state bench – having served as Chief Judge of the 42nd Circuit Court in Michigan since 1995 – and enjoys wide support within the State. And he too has received a unanimous “Well Qualified” rating from the ABA.

II. The Basis of Your Objections

In explaining your negative blue slips, you note that two of President Clinton’s Michigan nominees to the Sixth Circuit, Judge Helene White and Kathleen McCree Lewis, did not receive hearings or votes.

We understand your position. President Bush has explained that too many nominees of both President Bill Clinton and President George H.W. Bush did not receive timely hearings and votes. For example, two of President George H.W. Bush’s Sixth Circuit nominees – John Smietanka and Justin Wilson – and his nominee to the Eastern District of Michigan, Judge Saad, did not receive hearings or votes in the then-Democrat-controlled Senate a decade ago.

President Bush has called on both parties to move on from the cycle of blame and retribution that has plagued the Senate for more than a decade. Since the 2000 campaign, the President has emphasized that every judicial nominee should receive a committee hearing and up or down floor vote within a reasonable time, no matter who is President or which party controls the Senate. On October 30, 2002, after nearly two additional years of Senate delays, the President advanced a plan involving all three Branches that would require, among other steps, the Senate to vote on nominees within 180 days of nomination. The plan would ensure a generous period of time for all Senators to gather information and have their voices heard and votes counted. Whether the nominee is John Smietanka or Helene White or Susan Bieke Neilson, whether the President is President Clinton or President Bush, whether the Senate is Republican- or Democrat-controlled, the President believes that the procedures for fair and timely Senate consideration and votes on judicial nominations should be the same.

III. The Significance of the Blue Slips

Against this backdrop, let me turn to your blue slips.

It has been my understanding that the blue slip is not a veto, but rather a device to ensure adequate pre-nomination consultation with home-state Senators, such as has occurred in the cases of these five nominees. We understand this to have been the consistent Senate policy for at least the last 25 years – during the Chairmanships of Senators Kennedy, Thurmond, Biden and Hatch. And in recent weeks, several other Democrat Senators (including former Chairman Leahy) have argued that Jorge Rangel and Enrique Moreno, nominees of President Clinton to the Fifth Circuit, should have received hearings and votes notwithstanding what the Committee deemed to be inadequate consultation with home-state Senators – thereby implicitly embracing the view that home-State Senators should not be allowed to veto a nominee.

We agree strongly with the bipartisan policy maintained by Senators Kennedy, Thurmond, Biden, and Hatch as Chairs of the Judiciary Committee. We respectfully agree that the tradition of consultation does not and should not entail a veto for home-state Senators, particularly a veto wielded for ideological or political purposes. Rather, the intention of the Constitution and the tradition of the Senate require, in our judgment, that the full Senate hold an up or down vote on each judicial nominee. If the objections of home-state Senators to a nominee are persuasive, those objections either will deter the President from submitting the nomination in the first instance or, alternatively, will convince a majority of the Senate that the nomination should be rejected. As Senator Kennedy stated in 1981, however, the Senate has not allowed and should not allow “individual Senators [to] ban, prohibit, or bar” consideration of a nominee.

* * *

Once again I respectfully suggest that all Senators should have their voices heard and their votes counted on the nominations of Judges McKeague, Neilson, Saad, Griffin, and Ludington – five individuals well qualified to serve on the federal bench.

I remain hopeful that we can work together to fill these judicial emergencies and I remain ready to meet to explore options.



Alberto R. Gonzales
Counsel to the President

The Honorable Carl Levin
United States Senate
Washington, DC 20510

The Honorable Debbie A. Stabenow
United States Senate
Washington, DC 20510

Enclosures: March 28, 2003 Letter to Chairman Hatch

cc: The Honorable Bill Frist
The Honorable Thomas A. Daschle
The Honorable Patrick Leahy
The Honorable Orrin Hatch



March 28, 2003

Dear Chairman Hatch:

Thank you for your letter of March 25, advising the President of a letter you recently received from Senator Levin and Senator Stabenow. As you note, Senators Levin and Stabenow have returned blue slips objecting to all five judicial nominees from Michigan pending before the Committee. The Michigan Senators’ letter further suggests that the White House did not engage in adequate consultation with them regarding these nominees. You have asked me to describe the nature and extent of consultation between the White House and the Michigan Senators regarding Richard Griffin, David McKeague, Susan Bieke Neilson, Henry Saad and Thomas Ludington. We are pleased to have the opportunity to explain why we believe there has been appropriate consultation.

Before turning to a chronological review of the record, we believe a general comment is in order. Senators Levin and Stabenow insisted from the outset that President Bush should renominate to the Sixth Circuit two nominees of President Clinton – Helene White and Kathleen McCree Lewis – who had not received hearings or votes. The Senators argued that “elementary fairness . . . necessitates that they be renominated, that hearings be held, and that they be voted up or down by the Senate Judiciary Committee.” See Levin-Stabenow Letter to President Bush (April 3, 2001). In response, we informed the Senators that we were in fact considering Judge White and Ms. McCree Lewis, along with numerous other candidates, for the Sixth Circuit, but that the President would not commit to renominating them for those seats. We explained that it is extraordinarily rare for a President to nominate for the federal bench an individual previously nominated by his predecessor, especially when the predecessor is from another political party; that President Bush was not responsible for the failure of Judge White and Ms. McCree Lewis to attain confirmation; and that numerous individuals appointed by President George H.W. Bush to the federal courts of appeals saw their nominations lapse without Senate action at the end of 1992, and did not have their names resubmitted by President Clinton. As we summarized, “President Bush is entitled to make his own appointments for these vacancies, and he may well prefer candidates other than those previously chosen by President Clinton.” See Gonzales Letter to Senators Levin and Stabenow (April 10, 2001).

Following this initial exchange, in which the White House made its position very clear, we moved forward with the process of evaluating candidates for the judicial vacancies in Michigan – including Judge White and Ms. McCree Lewis, whom we interviewed – and recommending nominees to the President. Throughout this process, we repeatedly consulted with the Michigan Senators, seeking their input on candidates time and time again, almost literally until the eve of their nominations. At no point did either Senator Levin or Senator Stabenow ever articulate any specific objections to any of the five nominees. Instead, the Michigan Senators consistently responded to our consultations by (1) continuing to ask that President Bush “address” the White and McCree Lewis situations by renominating them, and (2) refusing to provide feedback on our proposed candidates unless and until we gave in to that request.

Specifically, our records show that, prior to the nominations of the five individuals in question, the White House engaged in the following noteworthy consultations with the Michigan Senators.
April 3, 2001. The Michigan Senators write to the President to announce their position: “[E]lementary fairness to [Judge White and Ms. McCree Lewis] . . . necessitates that they be renominated, that hearings be held, and that they be voted up or down by the Senate Judiciary Committee”; and “[n]ominating others in their stead would not only be inconsistent with your stated goal of bipartisanship, it would compound the difficult situation we are now in relative to filling the Michigan judicial vacancies on the Sixth Circuit.”

April 10, 2001. I respond in writing as described above – stating that we are considering Judge White and Ms. McCree Lewis, but that President Bush is entitled to make his own appointments for the Michigan vacancies.

May 17, 2001. At a meeting in my office, I provide the Senators with the names of individuals being considered for the Sixth Circuit (including Judges Saad, McKeague, and Griffin) and for the vacancy on the U.S. District Court for the Eastern District of Michigan (including Thomas Ludington). I invite the Senators to provide their feedback on those individuals. Senator Levin, however, states that he will not provide any reactions until “the larger issue” is settled.

May 17, 2001. Following up on my meeting with the Senators, Associate Counsel Brad Berenson calls the Chiefs of Staff of Senators Levin and Stabenow, again providing the names of the candidates and soliciting the Senators’ reaction.

May 23, 2001. Mr. Berenson consults again with Senator Levin’s Chief of Staff regarding Judges Griffin, McKeague and Saad – making clear that no nominations are definite, and again asking for reactions or feedback from the Senator. Mr. Berenson also delivers the same message and invitation by voice mail to Senator Stabenow’s Chief of Staff.

June 7, 2001. Mr. Berenson again calls Senator Stabenow’s Chief of Staff seeking the Senator’s reaction to the potential judicial nominees. The Chief of Staff reports that Senator Stabenow does not know any of the individuals in question and again urges that no action should be taken on them until the White/McCree Lewis situation is addressed.

June 15, 2001. Mr. Berenson again calls Senator Stabenow’s Chief of Staff – once again seeking the Senator’s reaction to the potential judicial nominees, and notifying the Senator that Susan Bieke Neilson is under consideration for the Sixth Circuit. Mr.Berenson also calls Senator Levin’s Chief of Staff to deliver the same message, but is told that the Chief of Staff can not talk until the following Monday.

June 21, 2001. After leaving several telephone messages, Mr. Berenson succeeds in contacting Senator Levin’s Chief of Staff. Again, he seeks the Senator’s reaction to the potential judicial nominees we had identified on May 17; he also gives notice that Susan Bieke Neilson is under consideration for the Sixth Circuit.

July 9, 2001. Mr. Berenson speaks by phone with Senator Levin’s Chief of Staff regarding Judge Neilson. Mr. Berenson leaves a voice mail message about Judge Neilson for Senator Stabenow’s Chief of Staff.

August 8, 2001. Mr. Berenson places phone calls to both Senators’ Chiefs of Staff. Both are on vacation, so Mr. Berenson leaves messages regarding Judge Ludington.

August 10, 2001. Senator Levin’s Chief of Staff writes to Mr. Berenson reiterating Senator Levin’s original position.

August 14, 2001. Mr. Berenson responds to Senator Levin’s Chief of Staff, explaining that “although we gave careful consideration to the matter, including interviews of both women, the President does not intend to nominate both these women to the Sixth Circuit.” Mr. Berenson’s letter further notes that “[we] have . . . continued to keep the Senator fully informed at every stage of our deliberations, providing the names of individuals the President is considering for appointment and repeatedly soliciting the Senator’s views,” and advises that “we would prefer to have the Senator’s input before the President makes nominations.”

August 17, 2001. I send a letter to then-Chairman Leahy (with copies to the Michigan Senators as well as to you), once again clearly setting out the White House’s position. I write that “I have met with Senators Levin and Stabenow and have listened carefully to their concerns regarding the history of nominations from Michigan to the Sixth Circuit. Although I understand their 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. 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 upon grievances in which president Bush played no part.” I also reiterate that “[w]e remain committed to consulting closely with home-state Senators to identify judicial candidates the President may nominate with the support of the Senators; however, meaningful, good faith consultation by the Senators cannot, in my judgment, include a demand that President Bush select as nominees those individuals previously selected by the prior Administration.”

August 22, 2001. Senator Levin’s Chief of Staff writes to Mr. Berenson, proposing a bipartisan commission for judicial nominations in Michigan.

August 23, 2001. Mr. Berenson responds, explaining that the White House is not willing to consider a commission in Michigan at this time. Mr. Berenson elaborates: “Commissions exist or are under consideration in only two or three states in which history or other special circumstances clearly justify such an unorthodox mechanism. None of these circumstances exists in Michigan.”

October 9, 2001. I meet with the Michigan Senators at Senator Levin’s office to discuss potential solutions to the Sixth Circuit impasse.

October 31, 2001. I speak with Senator Levin to explain why the Michigan Senators’ commission proposal is not acceptable, and to inform the Senator of the president’s intent to make nominations to the Sixth Circuit seats shortly.

November 1, 2001. Senators Levin and Stabenow write to urge me “to reconsider [their] proposal to jointly establish a bipartisan judicial nominating commission for the existing Michigan vacancies on the Sixth Circuit Court of Appeals.” Again, they do not provide any comments on Judges Griffin, McKeague, Neilson, Saad or Ludington – and they indicate that “we could not, in good conscience, return blue slips on Sixth Circuit nominees until the unfair treatment of the nominations of [Judge White and Ms. McCree Lewis] is addressed.”

November 2, 2001. I respond to the Michigan Senators, respectfully declining to reconsider our decision not to establish a judicial nominating commission, and reiterating that we had proposed an appropriate solution to the Michigan situation. My letter also gives fair warning that “the President will soon make nominations to all of the existing federal judicial vacancies in Michigan,” and invites the Michigan Senators to reconsider their position.
Following these extensive consultations by the White House, the President nominated Judges McKeague, Saad and Neilson on November 8, 2001.

Still, our consultations as to the remaining vacancies continued even after this point. I met with the Michigan Senators on December 19, 2001, and again on February 7, 2002, to discuss solutions to the Michigan situation, and I called them on June 20 and 24, 2002. Seeing no prospect of resolution, the President nominated Judge Griffin to the Sixth Circuit on June 26, 2002. Judge Ludington was nominated later that year, on September 12.

In short, we engaged in repeated pre-nomination consultations with the Michigan Senators regarding these five nominees, making every reasonable effort to get the Senators’ feedback. We interviewed the candidates suggested by the Senators – Judge White and Ms. McCree Lewis. And we proposed our own reasonable solution to the matter. Notwithstanding these extensive efforts by the White House, the Michigan Senators steadfastly refused to provide feedback on the nominees, instead insisting that the President should first agree to nominate President Clinton’s candidates and/or to turn the process over to a commission. After several months, with no sign of progress, and having received no specific objections to any of the individuals in question, the President proceeded with his nominations, to address the acknowledged judicial emergencies on the Sixth Circuit. These emergencies continue to this day, and affect not only the constituents of Senators Levin and Stabenow, but also the citizens of Kentucky, Ohio and Tennessee.

I believe that any reasonable observer would agree that the record described above demonstrates that the White House engaged in appropriate consultations with respect to the five Michigan judicial nominees.

* * *

I trust that this letter provides the information you need regarding our extensive consultation with the Michigan Senators. However, I would be pleased to provide additional details if necessary.



Alberto R. Gonzales
Counsel to the President

The Honorable Orrin Hatch
Senate Judiciary Committee
United States Senate
Washington, DC 20510