Sunday, June 12, 2005

States' Rights Trampled--by Republicans?!

Something that is not much talked about is how the Republican leadership in the Senate is trampling on a long-held tradition of that chamber--and I'm not talking about the filibuster battle (which is likely only on hiatus until a Supreme Court vacancy occurs).

Federal circuit courts are districted geographically, and so each comprises a number of states. Further, federal law directs that each state in a given circuit be represented by at least one judge on that circuit's court. Interpretation of 28 U.S.C. section 44(c) has established that seats are reserved for each state to ensure fair representation of states' laws. Because the confirmation process happens in the Senate, these elected representatives speak for their own states, and have been accorded the privilege of unilaterally blocking a nominee from getting an up-or-down vote. For example: If one senator from North Carolina disapproves of a presidential nominee who will fill a North Carolina-allocated seat on his/her circuit, s/he does not return the "blue slip", and that nominee doesn't come out of committee for a floor vote.

At least, that's how it worked when Clinton was the nominating president. But no more:
  • The Fourth Circuit: Under Clinton, despite a large number of unfilled vacancies, Senators Jesse Helms (R-NC) and Strom Thurmond (R-SC) refused to allow hearings or votes on several Clinton nominees, supported by then-Chief Judge J. Harvie Wilkinson. The only two nominees the Republican-controlled Senate confirmed to that court included one originally appointed by President George H.W. Bush (41). But George W. Bush (43) heard a different tune from Senators Helms and Thurmond; the new president nominated former Helms aides Terrence Boyle and former Thurmond aide Dennis Shedd (confirmed), and re-nominated Roger Gregory (VA, confirmed), plus Allyson Duncan (NC, confirmed), Claude Allen (VA) and William Haynes (VA).
  • The Sixth Circuit: Then-Senator Spencer Abraham (R-MI) refused to allow two of President Clinton's nominees to the Sixth Circuit to advance from committee. Despite repeated entreaties from not only fellow Senator Carl Levin (D-MI) but also the Chief Justice of the Sixth Circuit, Abraham stood on his traditional privilege, and it was accorded him by Sen. Orrin Hatch (R-UT), then-chair of the Judiciary Committee. Senator Hatch, and now current Judiciary Committee Chair Arlen Specter (R-PA), have negated the respect so recently accorded to this Senate tradition by advancing all of President Bush's nominees to the Sixth Circuit over the "blue slip" objections of not one, but both of the Michigan senators. Senators Carl Levin (D-MI) and Debbie Stabenow's (D-MI) offers to set up a bipartisan commission to negotiate a compromise have been rejected. According to the Alliance for Justice, McKeague and fellow Michiganders Richard Allen Griffin and Henry Saad are "the first three nominees ever to be granted a hearing over the objections of both home-state senators."

  • True, this breach of Senate tradition in and of itself has no bearing on the credentials or qualifications of the individual nominees. However, it is as important that nominations be brought forward in the proper manner, showing due and equal respect to all members of the Senate regardless of party affiliation, as it is crucial that each of the nominees be of sterling quality with respect to their legal knowledge and judicial experience and ethics.

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