Nomination of Henry W. Saad to be U.S. Circuit Judge for the Sixth Circuit

NOMINATION OF HENRY W. SAAD TO BE U.S. CIRCUIT JUDGE FOR THE SIXTH CIRCUIT

Mr. KYL. Might I inquire of the Chair what the pending business is.

The PRESIDING OFFICER. The pending business is the nomination of Henry Saad, of Michigan, to the Sixth Circuit Court of Appeals.

Mr. KYL. Mr. President, Senator Hatch is chairing a subcommittee hearing and asked that I open the debate with respect to the nomination and confirmation of Judge Henry Saad. So I think my comments are reflective of Chairman Hatch's views, but I will present them as my own as well.

I will first speak a little bit about Judge Saad and his nomination to this court and why we have had a problem in getting this far with his nomination but why I hope our colleagues will be willing to vote to confirm him.

As the Chair noted, he is a nominee to the U.S. Circuit Court for the Sixth Circuit. He was nominated, and I ask my colleagues to think of this date for a moment, on November 8, 2001. It is now 2004. He is a distinguished State court of appeals judge from the State of Michigan with nearly a decade of experience in that court. He has been there since 1994. In that capacity, he is actually elected and reelected, and he has been reelected twice to serve on the court of appeals with broad bipartisan support within the State of Michigan.

The American Bar Association has rated Judge Saad qualified to sit on the U.S. Court of Appeals for the Sixth Circuit. Therefore, his nomination should have come before us long before now. He should be confirmed, obviously.

I will mention a bit about the Sixth Circuit. There are 16 authorized seats on the circuit, but there are 4 vacancies. Obviously, one-fourth of the authorized seats on that court remain vacant today. President Bush has nominated four very well-qualified individuals from Michigan to fill these vacancies. The seat to which Judge Saad has been nominated has been deemed a judicial emergency and, of course, it is not hard to see why with that number of vacancies.

Interestingly, President George H.W. Bush, President Bush No. 41, first nominated Judge Saad to the Federal bench in 1992, but the Democratic Senate failed to act on his nomination at that time, as well as one other from Michigan, prior to the end of President Bush's term. So this is the second time he has been nominated for this prestigious court.

A bit about his personal history. Judge Saad was born in Detroit. He is a lifelong resident of the State. He would be the first
Arab-American appointee to the Court of Appeals for the Sixth Circuit. According to the Detroit Free Press, Bush's nomination of Saad in the wake of the September 11 attacks-remember, it was only 2 months to the day following the September 11 attacks:

conveys an important message to all the citizens and residents of this country that we embrace and welcome diversity and that we are extending the American dream to anyone who is prepared to work hard.

Judge Saad has had a distinguished career as a practicing attorney and law professor before serving on the State bench. From 1974 until 1994 he practiced law, first as an associate and then a partner with the prestigious Detroit firm of Dickinson, Wright. He built a national practice and reputation there in the areas of employment law, school law, libel law, and first amendment law. He serves as an adjunct professor at both Wayne State University Law School and the University of Detroit Mercy School of Law. He received his bachelor's degree in 1971 and his law degree, magna cum laude, in 1974, both from Wayne State University. He received a special Order of the Coif award in 2000, which is bestowed by a vote of the faculty of the school upon a distinguished graduate who has earned his degree before the law school was inducting members into the Order of the Coif.

Judge Saad has significant appellate experience in both civil and criminal matters, authoring well over 75 published majority opinions. His nomination has broad bipartisan support, including endorsements from such disparate groups as the United Auto Workers and the Michigan Chamber of Commerce.

Judge Saad is dedicated to improving the law and helping his State and local community through volunteer work. He was chairman of the board of the Oakland Community College Foundation, president of the Wayne State University Law School Alumni Association, and he is currently a member of the board of visitors to the Ave Maria Law School.

Judge Saad was a board member of the National Council of Christians and Jews and the American Heart Association, as well as trustee of WTVS Channel 56 Education Television Foundation.

Judge Saad received the "Salute to Justice John O'Brien Award" for outstanding volunteer service to the people of Oakland County in 1997, and he received the Arab-American and Chaldean Council Civic and Humanitarian Award for outstanding dedication to serving the community with compassion and understanding in 1995.

Let me read a few statements from people who have endorsed the nomination and confirmation of Judge Henry Saad. The Secretary of Energy, former Senator from the State of Michigan, said:

I have known Henry for twenty years on a personal and professional level. He is a person of unimpeachable integrity and will serve our country and our justice system remarkably well.

John Engler, the former Governor of Michigan, said:

The President selected individuals [including Henry Saad] who are experienced judges and whose reputations for intellect, knowledge of the law, diligence and temperament are well established. Judge Saad has established a distinguished reputation on Michigan's appellate court which he will take to the federal appeals court.

The President of the United Auto Workers, Stephen Yokich, said:

I have known Judge Saad for twenty-five years. He is a man of the highest integrity and a judge who is fair, balanced and hard working. I strongly support President Bush's nomination of Judge Saad to the federal appellate bench.

Congressman Joseph Knollenberg, who is a Representative from the State of Michigan, said:

I have known Judge Saad for over twenty-five years. He was an outstanding lawyer and is a highly regarded appellate jurist, known for his scholarly opinions, balance and fairness. I am confident he will be a great addition to the Federal appellate bench.

Justice Stephen Markman from the Michigan Supreme Court said:

In his seven years on the Michigan Court of Appeals, Judge Saad has been one of its most thoughtful and fair-minded jurists. His opinions and his judicial integrity have earned him the respect of a remarkably broad range of his colleagues.

Finally, Judge Hilda Gage of the Michigan Court of Appeals said:

I have served with Judge Saad on the Michigan Court of Appeals for six years. I admire his judicial independence and his scholarly analysis of the law. I applaud the President's nomination of Judge Saad to the Sixth Circuit Court of Appeals.

Those are some of the people who have worked with him, who have known him a long time, who represent a diverse point of view within the State of Michigan, and yet all of whom endorse the President's nomination of Judge Saad to the Sixth Circuit.

Let me speak for a moment about the status of his circuit because, as I noted at the beginning, there are four vacancies. One-fourth of the active seats on this court, are vacant. The President has nominated four very well-qualified individuals to fill these vacancies. All four of these vacancies have been deemed judicial emergencies by the Administrative Office of the U.S. Courts.

I might, for those who are not aware, describe what this means. The Administrative Office of the U.S. Courts characterizes, in some rare circumstances, vacancies on the court as judicial emergencies by virtue of the caseload of the court, the nature of the cases before the court, the ability of the court to turn out decisions and opinions, and the number of judges available to serve on the court. They balance all of those considerations. When the court does not have enough people to do the job it is required to do, when litigants are taking too long to get their matters heard before the court, and in effect when justice is not being done because it is being delayed, then the Administrative Office of the U.S. Courts declares judicial emergencies.

All four of these vacancies in the Sixth Circuit have been so designated. The confirmation of two judges in late April and early May of this year filled two of then six vacancies, but the circuit remains overburdened.

By the way, let me quantify what I said a moment ago. When I spoke of judicial emergency, in the court of appeals, that occurs specifically when adjusted filings per panel are in excess of 700, or any vacancy is in existence more than 18 months where adjudicated filings are between 500 and 700. All four of the Michigan vacancies on the Sixth Circuit have been in existence for more than 18 months and the adjusted filings total 588. That is why it is so important that we act now to fill this vacancy.

Only a substantial commitment on the part of the senior judges of the Sixth Circuit, and the district judges from within the circuit filling in, as well as visiting appellate judges from other circuits, has kept the caseload of this important circuit manageable. It is the third busiest court of appeals in the country. Chief Judge Boyce Martin has asked Congress to authorize a 17th judge for the court.

So if we filled all four of these vacancies today, not only would we have at least filled those judicial emergencies, but the chief judge of the circuit has said we need additional judges in addition to these.

Among the 12 U.S. Courts of Appeals, the Sixth is the 11th in the timeliness in the disposition of cases. Only the Ninth Circuit takes longer to issue its opinions. I am familiar with that, having practiced before the Ninth Circuit. When it takes so long for litigants who have disputes before the court to get action on their cases, justice is denied. This circuit, being the next to the bottom in terms of the speed with which its decisions are made, makes it a clear candidate for the Senate to act. It is unconscionable that we have not been able to confirm Judge Saad as well as the other three nominees to this court.

The district court judges within the Sixth Circuit have complained that what has turned out to be regular duty as substitute judges on the court of appeals has slowed down their own dockets considerably. In other words, they have not been able to do their own jobs because they have had to fill in for the circuit court judges. According to Judge Robert Bell, who is a district judge from the Western District of Michigan:

We're having to backfill with judges from other circuits, who are basically substitutes. You don't get the same sense of purpose and continuity you get with full-fledged court of appeals judges. . . . Putting together a federal appeals court case often takes a Herculean effort in a short time for visiting district judges. "We don't have the time or the resources that the circuit court has," Bell said. You can't help to conclude that if we had 16 full-time judges with a full complement of staff that each case might get more consideration, not to say results would be different.

This quote, by the way, was the Grand Rapids Press, February 21, 2002.

U.S. attorneys in Michigan likewise have complained that the vacancy rate in the Sixth Circuit has slowed justice and complicated the ability to prosecute wrongdoers. It has enabled defendants to commit more crime while awaiting trial. It has led to less consistencies in the court's jurisprudence and effectively deprived the use of en banc review in some cases. En banc review is the situation where a panel of three judges has made a decision and the litigants have asked the full court to hear-in effect to rehear or have a mini-appeal-a case from the decision of the panel of three. If you do not have the full complement of judges on the court, you can't have the same kind of en banc review.

Let me quote a letter from 31 assistant U.S. attorneys in the Eastern District of Michigan sent to our colleague, Senator Carl Levin, on January 16, 2002:

In years past, it was the normal practice of the Sixth Circuit that a case would be heard by the Court approximately three months after all briefs were filed, and in most cases an opinion would issue in about three additional months. At present, due to the large number of vacancies on the Court . . . it has been taking on average between twelve and eighteen months longer for most appeals to be completed than was the case for most of the 1990's.

These are the prosecuting attorneys. These are the people who I noted have complained that the vacancy rate has complicated their ability to prosecute wrongdoers. Our failure to act in the Senate has real-life consequences on the people of Michigan. When justice cannot be dispensed with because there are not enough judges and wrongdoers are awaiting trial and they are able to go out and commit additional crimes, we have a responsibility to solve that problem. That is why it is so important for us to vote and to vote up or down on the confirmation of Judge Saad.

I serve on the Judiciary Committee. I heard some questions raised about whether he would be a good addition to the court. You heard just a summary of the many people who spoke on his behalf with a wide diversity of opinion. He has a "qualified" rating from the Bar Association.

If my colleagues want to vote no on his nomination, they are free to do so. On rare occasions, I have voted no against judicial nominees. I voted no on very few occasions when President Clinton was making the nominations, but I felt that I always had the right to express my view one way or the other. That is all Judge Saad is asking for. With the nomination pending now for almost 4 years, it is time that he have a vote up or down.

Let me read to you a letter from 31 assistant U.S. attorneys in the Eastern District to Senator Levin:

[D]elays in criminal cases hurt the government; the government has the burden of proof, and the longer a case goes on the more chance there is that witnesses will disappear, forget, or die, documents will be lost, and investigators will retire or be transferred.

I go on from a different portion of this letter:

In some cases, convicted criminal defendants are granted bond pending appeal. The elongated appellate process therefore allows defendants to remain on the street for a longer period of time, possibly committing new offenses. In addition, the longer delay makes retrials more difficult if the appeal results in the reversal of a conviction.

Further quoting from this letter:

The Sixth Circuit has resorted to having more district judges sit by designation as panel members. This practice has contributed to a slowdown of the hearing of cases in district courts, because the district judges are taken out of those courtrooms. The widespread use of district judges also provides for less consistency in the appellate process than would obtain if full-time Circuit judges heard most of the appeals.

In some cases, the small number of judges on the Court has served to effectively deprive the United States of en banc review. . . . Achieving a unanimous vote of all of those judges of the Court who were not part of the original panel is, as a matter of practice, impossible, and not worth seeking. However, if the Court was at full strength, an en banc review could have been granted with the votes of about two-thirds of the active judges who were not part of the original panel.

Why haven't we been able to vote on Judge Saad? The two Senators from the State, notwithstanding the fact that there are four vacancies in their own State, that the prosecutors from the State have written as I have just indicated, that people of wide disparate views in their State support his nomination, the two Senators from the State have urged their colleagues not to allow the vote to go forward. The reason is because two nominees to fill vacancies in Michigan were left without hearings at the end of the Clinton administration in 2001. It is not uncommon at the end of an administration for there to be nominations pending. I predict that because of opposition from the minority party, there will be a lot of nominations President Bush would like to have confirmed but which will not be confirmed because the other party will not allow it to happen. Sometimes nominations are made too late in the year for the vetting to be done, for the Bar Association to report, for the hearings to be held, for the executive work of the Judiciary Committee to report the judges to the Senate floor, and for the full Senate to vote. That is not an uncommon occurrence.

I note, for example, that Senators who are upset that two judges weren't considered at the end of the Clinton administration should also note that two nominees, including John Smietanka, the very well qualified U.S. attorney from the Western District of Michigan, were also left without hearings at the end of President Bush's term in 1993. So President Clinton got to appoint the same number of judges to the Sixth Circuit as the number of vacancies that came open during his Presidency.
As with his predecessor, there were a couple of nominations still pending at the time his term ended.

But as these examples illustrate, both parties have had nominations left pending at end of their President's terms. The effort of the Senators from Michigan to block the consideration of Judge Saad as well as the other three nominations of President Bush at the outset of his term in 2001 is unheard of. It might be one thing if these nominations had just occurred and we didn't have time to consider them, but Judge Saad, as I said, was nominated on November 11, 2001, 2 months after the historic event of September 11. Five of the Sixth Circuit active judges-nearly half-were appointed by President Clinton-one President. I don't think it is possible to argue here that there is some kind of political agenda by Republicans or by
President Bush to deny President Clinton nominations and confirmations of his nominations.

I might note that an editorial opinion in Michigan confirms this point. It is overwhelmingly opposed to the tactics of the minority to prevent confirmation of the nominees President Bush has made to fill these vacancies.

Let me quote from the Grand Rapids Press of February 24, 2002. This is only 3 months after the nomination of Judge Saad:

The Constitution does not give these Senators from Michigan [Senators Levin and Stabenow] co-presidential authority and certainly does not support the use of the Court of Appeals to nurse a political grudge. . . . [Senators Levin and Stabenow] have proposed that the President let a bipartisan commission make Sixth Circuit nominations or that Mr. Bush re-nominate the two lapsed Clinton nominations. Mr. Bush has shown no interest in either retreat from his constitutional prerogatives. Nor should he. Movement in this matter should come from Senators Levin and Stabenow-and, clearly, it should be backward.

From the Detroit News, June 30, 2002:

It was wrong for the Senate to fail to act on Clinton's Michigan nominees. But another wrong won't make things right for Michigan. Enough is enough. . . . Senators, it is long past time to fill Michigan's voids in the hall of justice.

I will conclude with one comment. Colleagues on the other side of the aisle will argue that we actually have confirmed a lot of President Bush's nominees. The truth is that we have confirmed about the same number of district court judges as is usual for the Senate during the first term of the President. In the first 3½ years of President Bush's term, we have confirmed, so far, 198 judges, and that is pretty close to the other President's by this overall statistic. President Bush would be on about the same pace as President Clinton, who appointed a total of 371 judges in 8 years-just 4 fewer than the 375 appointed by President Reagan. This would be about par.

The problem is, in the circuit court judges, Presidents ordinarily get most of their nominees confirmed, but President Bush is only getting about half of his confirmed.

Here are the statistics. President Clinton saw 71 percent of his circuit court nominees receive a full vote in the Senate; the first President Bush, 79 percent. President Reagan, 88 percent of his circuit nominees were confirmed; President Carter, 92 percent. But in the 107th Congress-our Congress-President Bush has only gotten 53 percent of his circuit court nominees voted on by the full Senate, 17 out of 32.

That is where the problem is and there is no secret why. As has been described many times by my friends on the other side of the aisle, the circuit court is just below the Supreme Court. It is viewed as more powerful and more important than the district courts. There are many more district court judges. They are the court of first resort. Their cases are appealed to the circuit courts.

Most of the time, circuit court decisions are not appealed or the appeals are not accepted by the Supreme Court. It can only hear maybe 300 cases or so a year, so, as a practical matter, the circuit courts become the court of last resort. That is why Democrats have refused to even vote on President Bush's nominees for circuit courts because they believe President Bush's nominees would not be as capable, have the right political philosophy, or serve the interests of justice as well as a President of their party.

As I have noted, whether Democrat or Republican, the full Senate under Republican control, as well as under Democratic control, has allowed votes on the vast majority of the circuit court nominees of previous Presidents. It is only President George Bush who has only received a vote on half of his circuit court nominees. That is what is going on. It is wrong. We need to vote. We need to vote on a nominee who has been pending now since November 11, 2001, Judge Henry Saad. I urge my colleagues when that opportunity comes within the next several hours, we will have that opportunity, they will agree to permit an up-or-down vote. That is all we are asking for.

If they have objections, and I see a couple of my colleagues are here, perhaps they would like to discuss their objections to Henry Saad. But let the Senate vote on this nominee as we do with most other issues. We bring it to the vote. Our Members want to vote. But at least this man, who has been waiting now for 3 years, would have a chance to have his nomination either confirmed or rejected.

I urge my colleagues to provide him that opportunity.