Michigan Judicial Representation Threatened

The Michigan Legal Foundation has launched an educational project to alert Michigan citizens to a crisis in the federal court system that will affect the work of the Foundation and all Michigan citizens and businesses.

Four highly qualified Michigan Judges, nominated by President Bush for the Sixth Circuit Court of Appeals, are being blocked from the U.S. Senate's consideration for elevation to that court. Michigan Senators Debbie Stabenow and Carl Levin have invoked an arcane Senate procedure called "blue slips" to withhold their consent for Senate hearings and full floor debate. If this stalemate is not broken, Michigan stands to lose its complement of judicial representatives on a court second only in importance to the U.S. Supreme Court.

There is no dispute that nominees Richard Griffin, David McKeague, Susan Bieke Neilson and Henry Saad are all distinguished jurists who have served the citizens of Michigan with competence and integrity. All four judges have received favorable ratings from the American Bar Association and enjoy widespread respect from the legal community. In fact, there is no known specific objection by the Michigan Senators to any particular nominee - it appears that they are protesting the manner in which Senate Republicans dealt with prior Clinton judicial appointees and the refusal of President Bush to renominate these nominees to the current vacancies on the Sixth Circuit.

The Michigan Senators stopped the nominations, they say, 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 custom of the Senate rooted in time-honored "senatorial courtesy," in which the position of any dissenting homestate Senator on a nomination is generally deferred to. But this is the first time Senators have attempted to use the blue-slip process to block an entire group of judges, without regard to merit, and without specific Senatorial objection to any individual nominee.

The question remains whether the Senate Judiciary Committee, under the leadership of Senator Orrin G. Hatch, will allow Senators to use the blue slip process in this new way, or if the committee will allow consideration of all Michigan judge nominees who have been objected to, not as individuals, but in block.

The United States Constitution's provisions for appointing judges is also at risk. Article II, 2, cl. 2 provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the Supreme Court [and all judges inferior in the judicial sense]." While the Michigan Senators have reserved the right to "advise and consent" respecting the Michigan judges, that act contemplates good faith and consideration in a timely manner by those lawmakers. Blocking the consideration of all nominated Michigan judges both calls into question whether the Constitution is being honored and whether these Senate tactics are a legitimate prerogative of any Senator.

The Sixth Circuit is authorized to have 16 active judges. At present only ten judges are active in the regular service of that court. Thirty-one Assistant United States Attorneys for the Eastern District of Michigan previously complained to Senator Levin that "… the positions of the United States government can be harmed in several ways by the delays engendered by the shortage of judicial resources." They went on to say "…we believe it is vital for those who are nominated to have hearings so the process of seating new judges on the Court can begin, and the backlog of cases can be addressed."

This vacancy rate has prompted the Chief Judge of the Sixth Circuit to characterize the court's situation as an emergency.

With regard to court of appeals nominees, the delays are many times worse than at any recent time. These delays strain the judiciary and the cases involving Michigan litigators, and are unfair to individual nominees. The result of this impasse may be that unblocked judges from states other than Michigan, which are included in the Sixth Circuit's jurisdiction, may be confirmed, thereby denying Michigan its representation on the Court.

The immediate harm to the administration of justice is hard to quantify, but it is real. A judiciary diminished is justice denied. Michigan citizens deserve better.